Ajimon and Salimon v. P.K. Santhamma and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.HARIPRASAD THURSDAY, THE 1ST DAY OF JUNE 2017/11TH JYAISHTA, 1939 OP(C).No. 1563 of 2017 (O) --------------------------AGAINST THE ORDER DATED 12.04.2017 IN IA NO.229/2017 IN OS NO.25/2016 OF SUB COURT, SULTHAN BATHERY ## PETITIONERS/PETITIONERS: ------------------------------------- 1. AJIMON - S/O.KUNHAN, AGED 46 YEARS, PULICKAL HOUSE, ATHIRAATTUKUNNU KENICHIRA POST, WAYANAD DISTRICT-673 596. 2. SALIMON - S/O.KUNHAN, AGED 43 YEARS, PULICKAL HOUSE, ATHIRAATTUKUNNU KENICHIRA POST, WAYANAD DISTRICT-673 596. BY ADVS.SRI.BIJU ABRAHAM SRI.B.G.BHASKAR ## RESPONDENTS/RESPONDENTS: -------------------------------------- 1. P.K. SANTHAMMA D/O.KUNHAN, AGED 69 YEARS, PARUTHAPARA HOUSE, PERUVANNAMOOZHI P.O., KOZHIKODE-673 528. 2. P.K.BHASKARAN S/O.KUNHAN, AGED 63 YEARS, ATHIRAATTUKUNNU, KENICHIRA POST, WAYANAD-673 596. 3. DR.P.K.MOHANAN S/O.KUNHAN, AGED 61 YEARS, SHEH HOUSE, NEAR NALLUR SIVA TEMPLE, FEROKE, KOZHIKODE-673 631. 4. NARAYANAN P.K. AGED 71 YEARS, S/O.LATE KUNHAN, PULIKKAL HOUSE, ATHIRATTUKUNNU, KENICHIRA POST, WAYANAD-673 596. 5. THANKAMMA AGED 67 YEARS, D/O.LATE KUHAN, "MANORAMA", KARIYAMBADI, KARANI POST, WAYANAD DISTRICT-673 591. 6. PONNAMMA P.K. AGED ABOUT 65 YEARS, D/O.LATE KUHAN, W/O.DR.SREENIVASAN O.K., NANDI HOSPITAL, KADALOOR POST, NANDI BAZAR, KOYILANDI, KOZHIKODE DISTRICT-673 616. OP(C) NO.1563 OF 2017 2 ## 7. GIRIJA P.K. - D/O.LATE KUNHAN, W/O.RAMESAN, JAYANTHI HOUSE, VALYAPPALLI POST, VATAKARA, KOZHIKODE DISTRICT-673 542. ## 8. SAVITHA - W/O.LATE SUKUMARAN, AGED 60 YEARS, PULIKKAL HOUSE, KENICHIRA POST, SULTHANBATHERY TALUK, WAYANAD-673 596. ## 9. SUBI P.S. - S/O.LATE SUKUMARAN, AGED 60 YEARS, PULIKKAL HOUSE, KENICHIRA POST, SULTHANBATHERY TALUK, WAYANAD-673 596. ## 10. SABINA AGED 40 YEARS, D/O.LATE SUKUMARAN, PULIKKAL HOUSE, KENICHIRA POST, SULTHANBATHERY TALUK, WAYANAD-673 593. R1 TO R3 BY ADVS. SRI.P.VISWANATHAN SRI.SUNIL N.SHENOI R5 TO R7 BY ADV. SMT.M.M.DEEPA R4,R8 & R10 BY ADV. SRI.P.A.AUGUSTINE(AREEKATTEL) THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 23.05.2017, THE COURT ON 01-06-2017 DELIVERED THE FOLLOWING: OP(C).No. 1563 of 2017 (O) --------------------------- ## APPENDIX ## PETITIONER(S)' EXHIBITS ----------------------EXHIBIT P1 A TRUE COPY OF THE I.A.NO.701/2016 IN O.S.25 OF 2016 ON THE FILES OF SUB COURT, SULTHAN BATHERY APPLICATION IS PRODUCED HEREWITH AND MARKED AS EXHIBIT P1. EXHIBIT P2 A TRUE COPY OF THE ORDER IN I.A.NO.701/2016 IN O.S.25 OF 2016 ON THE FILES OF SUB COURT, SULTHAN BATHERY DATED 05-09-2016. EXHIBIT P3 A TRUE COPY OF THE I.A.NO.28/2017 IN O.S.25 OF 2016 ON THE FILES OF SUB COURT, SULTHAN BATHERY. EXHIBIT P4 A TRUE COPY OF THE ORDER IN I.A.NO.28/2017 IN O.S.25 OF 2016 ON THE FILES OF SUB COURT, SULTHAN BATHERY DATED 18-01-2017. EXHIBIT P5 A TRUE COPY OF ONE OF THE AGREEMENT EXECUTED BETWEEN THE PETITIONER WITH ONE OF THE TENANT SIVANANDHAN DATED 30-07-2016. EXHIBIT P6 A TRUE COPY OF THE CONSTRUCTION AGREEMENT EXECUTED BETWEEN THE PETITIONERS AND WITH CONTRACTOR ELDHOSE DATED 17-10-2016. EXHIBIT P7 A TRUE COPY OF THE PERMIT NO.SC3/9834/16 DATED 20-10-2016 IN FAVOUR OF PETITIONERS ISSUED BY POOTHADI GRAMA PANCHAYATH. EXHIBIT P8 A TRUE COPY OF THE FINAL ORDER OF THIS HON'BLE COURT IN OP(C) NO.595/2017 DATED 15-03-2017. EXHIBIT P9 A TRUE COPY OF THE APPLICATION FILED AS I.A.NO.229/2017 IN O.S.25 OF 2016 ON THE FILES OF SUB COURT, SULTHAN BATHERY. EXHIBIT P10 A TRUE COPY OF THE ORDER I.A.NO.229/2017 IN O.S.25 OF 2016 ON THE FILES OF SUB COURT, SULTHAN BATHERY DATED 12-04-2017. EXHIBIT P11 A TRUE COPY OF THE APPLICATION FILED AS IA NO.960/2016 IN OS 25/2016 ON THE FILES OF SUB COURT, SULTHAN BATHERY EXHIBIT P12 A TRUE COPY OF THE APPLICATION FILED AS IA NO.961/2016 IN OS 25/2016 ON THE FILES OF SUB COURT, SULTHAN BATHERY RESPONDENT(S)' EXHIBITS NIL ----------------------- //TRUE COPY// ## **A.HARIPRASAD, J. -------------------------------------O.P.(C) No.1563 of 2017** **-------------------------------------Dated this the 1[st] day of June, 2017** ## **JUDGMENT** This original petition under Article 227 of the Constitution of India is filed by the additional defendants 8 and 9 in O.S.No.25 of 2016 pending before the Sub Court, Sulthan Bathery. Respondents 1 to 3 are the plaintiffs in the suit. They filed the suit originally against the respondents 4 to 10 (defendants 1 to 7) seeking partition of the properties belonged to their father Kunhan. At the time of institution of the suit, the petitioners were not impleaded. Along with the suit, the respondents 1 to 3 (plaintiffs) filed an application for temporary injunction as I.A.No.701 of 2016 against the respondents 4 to 10 (defendants 1 to 7) for preventing them from making any construction and from committing waste in the property. It is pertinent to note that the petitioners are still not parties to the temporary injunction application. Ext.P1 is the copy of injunction application. As per Ext.P2 order, the trial court granted ad-interim order of injunction against defendants 1 to 7 (respondents 4 to 10) restraining them from committing waste in the petition schedule property. Although the plaintiffs prayed for an order of injunction against construction of buildings in the property, the trial court did not allow that prayer. 2 OP(C) No.1563 of 2017 2. Alleging that the defendants 1 to 7 violated the temporary injunction order, the plaintiffs filed I.A.No.28 of 2017 (Ext.P3) before the court below on 12.01.2017 to enforce the temporary injunction order with the help of police. Ext.P4 is the order passed in the above matter whereby the trial court directed the Station House Officer, Kenichira Police Station to see that the order of the court is enforced. 3. Petitioners' grievance is that notwithstanding the fact that they were not made parties originally to the suit or in the temporary injunction petition even now, their names were mentioned in Ext.P3 application as persons acting in tandem with defendants 1 to 7. Further grievance is that the trial court erroneously named them as violators of the injunction order, which does not operate against them. It is the contention of the petitioners that the respondents 1 to 3 were fully aware of the fact that the respondents 4 to 10 were not constructing any building in the plaint schedule item No.5 and the construction was carried on by the petitioners, who had obtained necessary plan and permit from Poothadi Grama Panchayat in October, 2016. The fact that the petitioners have been paying revenue to this property continuously from 1996 onwards, since the death of Kunhan, is also known to the respondents 1 to 3. Petitioners were impleaded in the suit only on 13.01.2017. 4. It is the definite case of the petitioners that by the time the suit was filed, basement of a building of about 2500 sq.ft. and 40 pillars for the 3 OP(C) No.1563 of 2017 superstructure had been completed. This fact was brought to the notice by the Advocate Commissioner, who inspected the property immediately after filing the suit. It is the definite case of the petitioners that item No.5 along with other items exclusively belonged to them and it is not partiable. Further contention is that they pulled down an old building in item No.5 before institution of the suit with the consent of the tenants and also through intervention of Vyapari Vyavasayi Ekopana Samithy, Kenichira unit. Petitioners contracted with the existing tenants that a convenient space in the building will be given to them after re-construction. Ext.P5 is copy of the agreement executed between the petitioners and tenants. Petitioners have entered into a time bound contract with a contractor on 17.10.2016 and the construction agreement is Ext.P6. Ext.P7 is the true copy of the permit issued by the Poothadi Grama Panchayat for constructing a commercial building in item No.5 of the plaint schedule. 5. It is the allegation of the petitioners that pursuant to Ext.P4 order police coerced them to stop the building construction. According to them, police has no right to interfere as they are not bound by the injunction order and the construction does not violate scope of the injunction order. Even though they approached the trial court to set aside Ext.P4 order, the court below dismissed their application. Petitioners approached this Court with O.P.(C) No.595 of 2017. As per Ext.P8 judgment, this Court allowed the petitioners to move the trial court to get a 4 OP(C) No.1563 of 2017 clarification/modification of Ext.P4 order. 6. Thereafter petitioners preferred I.A.No.229 of 2017 praying for clarification of Ext.P4 so as to enable them to continue the building construction. They had expressly stated their willingness to file an unconditional undertaking agreeing to demolish the building in case the court upholds the right claimed by the respondents 1 to 3 over item No.5. Ext.P9 is the copy of I.A.No.229 of 2017. Petitioners would contend that they obtained item Nos.1 to 3 and 5 shown in plaint schedule pursuant to a Will executed by Kunhan, the predecessor-in-interest of the contesting parties. Court below dismissed Ext.P9 application as per Ext.P10 order, which is impugned in this proceedings. According to the petitioners, the court below failed to consider the application in the correct factual and legal perspectives. 7. As directed by this Court, the petitioners have produced Exts.P11 and P12 along with I.A.No.828 of 2017. Ext.P11 is the application filed on 15.12.2016 for impleading the petitioners as additional defendants 8 and 9 in the suit. Ext.P12 is an application for the consequential amendment of the plaint. Petitioners' definite case is that though an application was filed on 15.12.2016, orders were passed thereon and they were actually impleaded in the suit only on 13.01.2017. 8. Heard the learned counsel for the petitioners and the learned counsel appearing for the contesting respondents. 5 OP(C) No.1563 of 2017 9. Learned counsel for the contesting respondents contended that the original petition under Article 227 of the Constitution of India is not maintainable as the order under challenge was passed by the court below invoking its power under Order XXXIX Rule 4 and Section 151 of the Code of Civil Procedure, 1908 (in short, “the Code”). It is therefore contended that the remedy is only to file an appeal as provided under Section 104 read with Order XLIII Rule 1(r) of the Code. Another contention raised is that the order of temporary injunction sought against the respondents 4 to 10 is binding on the petitioners as well and the building construction in item No.5 of the plaint schedule, if permitted to be done, will result in waste of the property. Besides, in future it may give rise to untenable contentions. 10. I shall deal with the first contention regarding maintainability of the original petition initially. In order to appreciate this issue, following facts will have to be recapitulated. Admittedly the petitioners were not impleaded in the suit at its inception. They were not made parties to the temporary injunction application and no order of injunction has been passed against them. True, there is an allegation that they instigated other defendants to violate the injunction order. But then, they were not made parties to the petition filed seeking enforcement of the temporary injunction order. In this context, it is relevant to note that an order passed under Order XXXIX Rule 1 of the Code binds only parties to the suit. No injunction can be granted under this Rule against a person who is not a party to the suit. However, 6 OP(C) No.1563 of 2017 this Rule is subject to certain exceptions. For eg., injunction can be given against a purchaser under a decree, against a tenant who had taken a lease from the receiver appointed by the court, etc. Such contingencies do not arise in this case. It is, therefore, clear that the petitioners are not bound by the injunction order passed against other defendants in the suit. 11. Order XXXIX Rule 4 of the Code reads thus: ## _“_ _**Order for injunction may be discharged,**_ _**varied and set aside** .- Any order for an injunction may be discharged or varied, or set aside by the Court, on application made thereto by any party dissatisfied with such order:_ _Provided that if in an application for temporary injunction or in any affidavit supporting such application, a party has knowingly made a false or misleading statement in relation to a material particular and the injunction was granted without giving notice to the opposite party, the Court shall vacate the injunction unless, for reasons to be recorded, it considers that it is not necessary so to do in the interests of justice:_ _Provided further that where an order for injunction has been passed after giving to a party an opportunity of being heard, the order shall not be discharged, varied or set aside on the application of that party except where such discharge, variation or setting aside has been necessitated by a change in the circumstances, or unless the Court is satisfied_ 7 OP(C) No.1563 of 2017 _that the order has caused undue hardship to that party.”_ On a plain reading of the above provision, it will be clear that an order for injunction may be discharged, varied or set aside by the court on an application made by any party dissatisfied with such order. The word 'party' used in the provision clearly indicate the party arrayed in the temporary injunction application. No doubt, it can be either the petitioner or the respondent; at any rate, it cannot be a non-party to the proceedings. A person, who is not bound by the temporary injunction order, cannot be said to be a party dissatisfied with such order, which is the essential condition for approaching the court with an application under Order XXXIX Rule 4 of the Code. It is, therefore, clear that the petitioners could not have moved the trial court under Order XXXIX Rule 4 of the Code. 12. Learned counsel for the contesting respondents pointed out that Ext.P9 application filed by the petitioners would show a mention of Order XXXIX Rule 4 of the Code as well. It is a well settled proposition of law that wrong quoting of a provision or non-quoting of a relevant provision will not affect the legal right of the parties, if necessary averments are made in the petition to invoke the jurisdiction of the court to grant a relief under appropriate provisions of law (see **John Simon v. T.H.Mohammed Kunju - 2007 (2) KHC 925** and **J.Kumaradasan Nair and another v. IRIC Sohan and others - AIR 2009 SC 1333).** 8 OP(C) No.1563 of 2017 13. The principle that an order of temporary injunction against a party could be enforced through police by invoking power under Section 151 of the Code is beyond any pale of dispute. This Court speaking through a Division Bench in **Adhikarath Valappil Kunhumuhammed alias** **Kunhippa and others v. Korath Illath Valappil Mammi alias Bava Haji** **and others (AIR 1999 Kerala 383)** has held that the courts shall not interfere in matters involving civil rights with an order of police protection on the basis of an ad-interim exparte order of the civil court. Only a final order passed under Rules 1 and 2 of Order XXXIX of the Code can be enforced with the assistance of police. It is not clear in this case whether the injunction order prevailing is an ad-interim order of injunction or an order passed after considering the application for temporary injunction. However, the trial court as per Ext.P4 ordered police aid to enforce the injunction order. Prima facie, the sustainability of the enforcement order itself is in doubt. 14. Prayer in Ext.P9 application has been commented upon by the learned counsel for the contesting respondents. It reads thus: _“For the reasons stated in the accompanying affidavit it is prayed that this Hon'ble Court may be pleased to pass an order clarifying/modifying the order dated 18.01.2017 in IA 28/2017 regarding the continuance of the building construction by the petitioners in plaint Item No.5 in the light of the_ 9 OP(C) No.1563 of 2017 _High Court order dated 15.03.2017 to enable them to continue the construction work in plaint item No.5, in accordance with the approved plan and permit issued by the Kenichira Panchayath, subject to the result of the suit, on an unconditional undertaking to demolish the building at their cost, if the courts finally hold that the defendants 8 and 9 have no right over the plaint item No.5.”_ According to the learned counsel for the contesting respondents, the second part of the prayer would show that the petitioners sought for a positive direction from the court to enable them to continue the construction work in plaint schedule item No.5. Per contra, learned counsel for the petitioners would submit that if the court below clarified that the order of temporary injunction passed against respondents 4 to 10 would not bind the petitioners and that the construction of building will not come within the sweep of the temporary injunction order, their purpose will be served. Rest of the prayers in Ext.P9 petition will automatically work out even without help of the court. It is their grievance that police unnecessarily meddled with their civil rights alleging that they have violated the injunction order contumaciously as if they are bound by the temporary injunction order. They are not parties to the petition and also that the building construction activities have not been prohibited by the court. 15. If Ext.P9 petition falls under Order XXXIX Rule 4 of the Code, certainly the remedy of petitioners is not to file an original petition of this 10 OP(C) No.1563 of 2017 nature, but to approach this Court with an appeal under Order XLIII Rule 1 (r) of the Code. Considering the entire facts and circumstances and also the material averments in the petition and the exhibits, I am of the view that Ext.P9 petition cannot be qualified as one under Order XXXIX Rule 4 of the Code. This finding is based mainly on two reasons. Firstly, the petitioners are not parties to the temporary injunction application and their rights are not affected by the injunction order. Secondly, they are not dissatisfied with the injunction order against commission of waste. Their grievance is only against impeding the building construction in item No.5 of the plaint schedule at the instance of police. According to the learned counsel for the petitioners, although a prayer was made in the temporary injunction application for granting injunction against respondents 4 to 10 from constructing any building, that was not allowed by the court, which shows that it was declined. For this reason also, it is contended, the court below should have allowed the prayer in Ext.P9. 16. The records produced would show that in item No.5, there was a building in existence, which was pulled down allegedly before institution of the suit. Assertions by the petitioners that they were possessing the building and they were collecting rent from the tenants are not seriously challenged by the plaintiffs/respondents 1 to 3. It is the case of the petitioners that they entered into an agreement with the tenants through the intervention of Vyapari Vyavasayi Ekopana Samithi and got them evicted 11 OP(C) No.1563 of 2017 on an undertaking that after reconstruction, a suitable portion will be allotted to them. To substantiate that contention, Ext.P5 agreement has been produced. It is also established by production of exhibits (Ext.P7) that a plan was obtained from the local authority for building construction. The claim of the petitioners is only to permit them to construct the building without hindrance from police. It is, therefore, contended that they do not seek any modification of the temporary injunction order, but only a clarification that it does not affect them. Having regard to the facts and circumstances of the case and the materials produced, I am of the view that Ext.P9 petition cannot be viewed as one under Order XXXIX Rule 4 of the Code. Therefore, the objection that this original petition is not maintainable and the petitioners’ remedy is to file an appeal under Order XLIII Rule 1(r) of the Code cannot be sustained. This point is decided against the respondents 1 to 3. 17. Gist of the contention raised by the petitioners is that item Nos.1, 2, 3 and 5 in the plaint schedule belonged to them by virtue of a registered Will executed by Kunhan and it came into effect in the year 1996. Then onwards, the petitioners are in possession of the properties and they enjoy it as their absolute property. The basic tax has been paid by them and they collected rent from the tenants who occupied the building in existence in item No.5. These are their contentions. The fact that the building was pulled down on the eve of the suit is not under challenge. 12 OP(C) No.1563 of 2017 Based on the decision in **Thomas Ben v. Parvathy Ommini (1961 KLT 86)** learned counsel for the petitioners contended that balance of convenience is in favour of allowing the petitioners to construct the building as they are willing to offer an unconditional undertaking to pull down the building, if ultimately they lose the legal battle. It is the submission on behalf of the petitioners that even before the suit , they have constructed a substantial portion of the structure and they have all the required plan and permit for constructing the building. That apart, they have to fulfil their obligations towards the tenants as revealed from Ext.P5 agreement. At any rate , if these factors are properly considered, it will only show that the petitioners are entitled to construct the building and let it out pending the suit. There is force in the contentions raised by the petitioners taking an over all view of the matters. 18. Learned counsel for the contesting respondents relied on the decision in **I.Gouri and others v. Dr.C.H.Ibrahim and another (AIR 1980 Kerala 94)** to contend that one co-owner cannot be permitted to construct a building in the co-ownership property adversely affecting the right of other co-owners. The facts in the decision have no application to this case. Going by the contention raised by the petitioners, it is seen that they are the exclusive owners of item No.5 in the plaint schedule wherein the building construction is happening. Respondents 1 to 3/plaintiffs have no case that the petitioners are co-owners of the property. Therefore, the said 13 OP(C) No.1563 of 2017 decision cannot be applied in this case. 19. Having regard to the entire facts and circumstances, I find that Ext.P10 order is not legally sustainable. The reason stated for disallowing the prayer in Ext.P9 is also unsustainable. In the result, this petition is allowed. Ext.P10 order is set aside. It is clarified that the petitioners are not bound by Ext.P2 temporary injunction order passed on Ext.P1 application. Since Ext.P2 is an adinterim order of injunction, the order itself is not enforceable through police. The petitioners are permitted to construct a building in item No.5 of the plaint schedule, in accordance with the approved plan and licence, on a condition that they should file an affidavit before the trial court undertaking that they will demolish the building, if ultimately they lose the case and the petitioners shall give clear indication of this fact to the tenants to be put in possession after reconstruction so that they shall not raise any claim in the event the petitioners are defeated. Original petition is disposed of as above. ## **A. HARIPRASAD, JUDGE.** **cks**