Hashiba w/o Mujeb Ummar v. Najeeb and Mujeeb Ummar

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **TUESDAY, THE 22[ND] DAY OF MARCH 2022 / 1ST CHAITHRA, 1944** ## **OP(C) NO. 465 OF 2021** **AGAINST THE ORDER IN C.M.A.NO.8/2020 IN I.A.NO.23/2019 IN OS** **7/2019 OF SUB COURT, CHAVAKKAD** ## **PETITIONER:** HASHIBA, AGED 35 YEARS, W/O. MUJEEB UMMAR, KUNNATHVALAPPIL HOUSE, KOCHANNUR P.O., VADAKKEKKADU VILLAGE, THRISSUR DISTRICT-679562. BY ADVS. AKBAR.K.A SMT.M.B.SHYNI SRI.DEEPAK RAJ SMT.C.P.ROOPA ## **RESPONDENTS:** 1 NAJEEB, AGED 36 YEARS, S/O. KUNNATHUVALAPPIL UMMER, KUNNATHVALAPPIL HOUSE, VADAKKEKKAD VILLAGE, KOCHANNOOR DESOM AND P.O., CHAVAKKAD TALUK, THRISSUR DISTRICT-679562, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER, THAHIRA ABDUL RASHEED, AGED 44 YEARS, W/O. VALIYAKATH POKARATH ABDUL RASHEED, MANATHALA AMSOM, THIRUVATHRA DESOM AND P.O., PIN-680 516. 2 MUJEEB UMMER, AGED 40 YEARS, S/O.UMMER.K.H., DIYA CASTLE, NJRA-25, PUTHANPURAKKAL ROAD, PALARIVATTOM, ERNAKULAM DISTRICT, PIN-682 025. BY ADV SRI.C.A.CHACKO THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 22.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P(C) No.465 of 2021 2 K.BABU, J . -------------------------------------O.P(C) No.465 of 2021 --------------------------------------Dated this the 22[nd ] day of March, 2022 ## JUDGMENT The challenge in this original petition filed under Article 227 of the Constitution of India is to the order dated 05.02.2021 in C.M.A.No.8/2020 on the file of the Subordinate Judge's Court, Chavakkad. C.M.A.No.8/2020 arose from the order dated 07.07.2020 in I.A.No.23/2019 in O.S.No.7/2019 of the Munsiff's Court, Chavakkad. Defendant No.2 in the original suit is the petitioner. The plaintiff and defendant No.1 are the respondents. The petitioner/defendant No.2 is the wife of defendant No.1, who is the brother of the plaintiff/respondent No.1. 2. The plaintiff filed the original suit against the defendants for a permanent prohibitory injunction regarding the plaint schedule property having an extent of 9.311 Ares of land covered by Ext.A1 settlement deed. Exhibit A1 settlement deed was executed by the mother of the plaintiff. As per Ext.A2 settlement deed, his O.P(C) No.465 of 2021 3 mother had assigned another property on the western side of the plaint schedule property to defendant No.1, his brother. The defendants were residing in the house in that property. 3. Defendant No.2 filed M.C.No.71/2018 before the Judicial First Class Magistrate Court, Kunnamkulam against defendant No.1. On 30.12.2018, the defendants attempted to trespass upon the plaint schedule property. Thereafter the plaintiff instituted the suit for a permanent prohibitory injunction. 4. Defendant No.1 did not contest the suit. Defendant No.2 resisted the application seeking temporary injunction contending that after her marriage, she resided in the family house situated in the plaint schedule property along with the plaintiff, defendant No.1 and their parents. Subsequently, the relationship between the defendants strained. Defendant No.2 instituted M.C.No.71/2018 before the Judicial First Class Magistrate Court, Kunnamkulam under the provisions of the Protection of Women from Domestic Violence Act, 2005 (for short 'the DV Act'). An interim order was passed by the Magistrate's Court directing defendant No.1 to O.P(C) No.465 of 2021 4 provide alternative accommodation or to pay the rent of the house. 5. The Trial court held that the plaintiff is in absolute possession and enjoyment of the plaint schedule property and the defendants have no right or possession over it. Based on the said findings, the Trial Court granted an interim prohibitory injunction against the defendants restraining them from trespassing upon the plaint schedule property or forcefully residing in the house therein or from causing any damage to the household articles and from interfering with the peaceful life of the plaintiff and his family. 6. Defendant No.2 challenged the order of the Trial Court in I.A.No.23/2019, filing C.M.A.No.8/2020 before the Subordinate Judge's Court, Chavakkad. The Court confirmed the findings of the Trial Court. 7. The order of the Trial Court in I.A.No.23/2019, which stands confirmed by the Subordinate Judge's Court, Chavakkad in C.M.A.No.8/2020 is under challenge in this original petition. 8. Heard Sri.Deepak Raj, the learned counsel appearing for the petitioner/defendant No.2 and Sri.C.A.Chacko, the learned O.P(C) No.465 of 2021 5 counsel appearing for respondent No.1. 9. The learned counsel for the petitioner contended that the building in the plaint schedule property is a “shared” household as defined in the DV Act, wherein the plaintiff and the defendants along with other members of the family were residing together. The learned counsel contended that the petitioner/defendant No.2 has the right to reside in that building. 10. Per contra, the learned counsel for respondent No.1/plaintiff contended that the building in the plaint schedule property is not a shared household as pleaded. It is further contended that defendant No.2 had been residing with her husband in another building covered by Ext.A2 settlement deed, adjacent to the plaint schedule property. 11. The plaintiff and defendant No.1 are brothers. Defendant No.2 is the wife of defendant No.1. The plaintiff claims right over the plaint schedule property as per Ext.A1 settlement deed executed by his mother. Admittedly, as per Ext.A2 settlement deed, a property on the immediate west of the plaint schedule O.P(C) No.465 of 2021 6 property was gifted to defendant No.1 by his mother. 12. The Trial Court relying on the pleadings and the other materials placed before it, recorded the finding that the petition schedule property has never been in the possession or ownership of the defendants. Ext.B1 is the copy of the order in M.C.No.71/2018 filed by defendant No.2 under the provisions of the DV Act. In Ext.B1, the learned Magistrate held that the building in the property covered by Ext.A2 is a shared household of defendant No.2. 13. The Trial Court relying on the pleadings, Ext.B1 order and Exts.A1 & A2 title deeds came to the inference that the building in the plaint schedule property is not a shared household of defendant No.2. The Trial Court also found that defendant No.2 failed to establish prima facie evidence to show that she resided in the petition schedule house at the time of institution of the suit as well as M.C.No.71/2018. As defendant No.2 failed to place any materials to show that the building in the plaint schedule property is her shared household, she has no legally sustainable right to reside in the building in the plaint schedule property. O.P(C) No.465 of 2021 7 14. The Trial Court held that defendant No.2 failed to establish a prima facie case and the balance of convenience is in favour of the plaintiff. The Court held that the plaintiff would suffer irreparable injury if the prayer for interlocutory injunction is not allowed. 15. The Trial Court and the District Court have exercised its discretion reasonably and in a judicial manner. 16. The learned counsel for the petitioner contended that the District Court has not exercised its discretion reasonably and in a judicial manner. ## 17. In Wander Limited vs. Antox India Private Limited (1990 Supp. SCC 727) , the Apex Court on the discretion to be exercised by the Appellate Court held thus : " The appellate court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by that court was reasonably possible on the material. The appellate court would O.P(C) No.465 of 2021 8 normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court's exercise of discretion". 18. This view was reiterated by the Apex Court in Seema Arshad Zaheer Vs. Municipal Corporation [2006 (4) KLT 65 (SC)] . 19. Therefore, the District Court is justified in not interfering with the discretionary relief granted by the Trial Court. 20. The power under Article 227 of the Constitution would be restricted to interference in cases of grave dereliction of duty or flagrant violation of law and would be exercised most sparingly in cases where grave injustice would be done unless the High Court interferes. It cannot be used as an appellate or revisional power. 21. The supervisory jurisdiction is not available to correct mere errors of fact or law unless the following requirements are satisfied-- (1) the error is manifest or apparent on the face of the proceeding such as when it is based on clear ignorance or utter disregard of the provisions of law; and (2) a grave injustice or gross failure of justice occasioned thereby. O.P(C) No.465 of 2021 9 ## 22. Therefore, this Court is of the view that the impugned order requires no interference. The Original Petition is dismissed as above. Sd/K.BABU, JUDGE KAS O.P(C) No.465 of 2021 10 ## **APPENDIX OF OP(C) 465/2021** PETITIONER EXHIBITS EXHIBIT P1 A TRUE COPY OF THE ORDER DATED 07/07/2020 PASSED BY THE HON'BLE MUNSIFF'S COURT, CHAVAKKAD IN IA NO.23/2019 IN OS NO.7/2019. EXHIBIT P2 CERTIFIED COPY OF THE ORDER DATED 05/02/2021 PASSED BY THE HON'BLE SUB COURT, CHAVAKKAD IN CMA NO.8/2021 IN IA NO.23/2019 IN OS NO.7/2019.