Jameel Suraj and Shamsudheen Poozhithara House v. Nazeer P

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN TUESDAY, THE 11TH DAY OF JUNE 2013/21ST JYAISHTA 1935 OP(C).No. 1948 of 2013 (O) --------------------------ORDER DT.31/5/13 IN IA.969/13 IN OS.118/13 OFMUNSIFF COURT, PARAPPANAGADI PETITIONER(S): -------------------------- 1. JAMEEL SURAJ, POOZHITHARA HOUSE, KLARI AMSOM, DESOM TIRURANGADI TALUK, ERADICODE P.O, MALAPPURAM - 676 501 2. SHAMSUDHEEN POOZHITHARA HOUSE, KLARI AMSOM, DESOM TIRURANGADI TALUK, ERADICODE P.O, MALAPPURAM - 676 501 BY ADV. SRI.K.K.MOHAMED RAVUF RESPONDENT(S): --------------------- NAZEER. P, S/O MOHAMEDKUTTY HAJI, PULLISSERI HOUSE KANNAMANGALAM AMSOM DEOSM, P.O, KANNAMANGALAM TIRURANGADI TALUK, MALAPPURAM DISTRICT THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 11-06-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C).No. 1948 of 2013 (O) --------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS ------------------------------------- EXHIBIT P1 TRUE COPY OF THE PLAINT IN OS NO 118/2013 FILED BY THE RESPONDENT BEFORE THE MUNSIFF COURT PARAPPANANGADI EXHIBIT P2 TRUE COPY OF THE SAID I.A NO 521/2013 IN O.S NO 118/2013 FILED BY THE RESPONDENT BEFORE THE MUNSIFF COURT, PARAPPANAGADI EXHIBIT P3 TRUE COPY OF THE ORDER DATED 09-05-2013 IN I.A NO 521/2013 IN O.S NO 118/2013 OF MUNSIFF COURT, PARAPPANANGADI EXHIBIT P4 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER IN O.S NO 118/2013 BEFORE THE MUNSIFF COURT, PARAPPANANGADI EXHIBIT P5 TRUE COPY OF THE COMMISION REPORT & SKETCH EXHIBIT P6 TRUE COPY OF THE PETITION AND ADDIDAVIT IN I.A NO 969/2013 IN O.S MNO 118/2013 FILED BY THE RESPONDENT BEFORE THE MUNSIFF COURT, PARAPPANANGADI EXHIBIT P7 TRUE COPY OF THE OBJECTION FILED BY THE PETITIONERS IN I.A NO 969/2013 IN O.S NO 118/2013 BEFORE THE MUNSIFF COURT, PARAPPANANGADI EXHIBIT P8 TRUE COPY OF THE ORDER DATED 31-05-2013 IN I.A NO 969/2013 IN O.S NO 118/2013 OF THE MUNSIFF COURT, PARAPPANANGADI //True copy// P.A.to Judge uj. ## **P.N.RAVINDRAN** , **J.** ## **--------------------------O.P.(C) No.1948 of 2013 -------------------------Dated this the 11[th] day of June, 2013** ## **J U D G M E N T** The petitioners are defendants 1 and 2 in O.S.No.118 of 2013 on the file of the Court of the Munsiff of Parappanangadi. The respondent is the plaintiff therein. The suit instituted by the respondent is one for a permanent prohibitory injunction restraining the defendants and their men from evicting him from the plaint schedule property by force and from interfering with his peaceful possession and enjoyment of the plaint schedule property until he is evicted by due process of law. Along with the plaint, the respondent filed I.A.No.521 of 2013 for an interim order of injunction in terms of the relief of injunction prayed for in the plaint. On that application, the Court of the District Judge (Vacation Court), Manjeri passed an ad interim order of injunction restraining the defendants from forcefully evicting the plaintiff from the plaint schedule property except by due process of law till 28.5.2013. A copy thereof is produced and marked as Ext.P3. 2. Upon receipt of notice, the defendants entered appearance and filed their written statement. They also filed objections to the application for injunction. The Advocate Commissioner appointed by the trial court inspected the plaint schedule property and submitted Ext.P5 report dated 28.5.2013. The plaintiff thereupon filed 2 O.P.(C) No.1948/2013 I.A.No.969 of 2013 in O.S.No.118 of 2013 wherein he prayed for an order directing the Sub Inspector of Police, Kottakkal to render necessary protection to him to conduct business in the plaint schedule room and godown and to break open the locked gate, which according to him was locked by the defendants, so as to enable him to take vehicles to the godown. The petitioners opposed the said application by filing Ext.P7 objections inter alia contending that an ex-parte interim order of injunction cannot be enforced, that the reliefs sought in I.A.No.969 of 2013 is not a relief sought in the plaint and therefore it cannot be granted. The court below considered the rival contentions and allowed I.A.No.969 of 2013 by Ext.P8 order dated 31.5.2013. The court below held that if the defendants are reluctant to open the lock for the plaintiff, the police can break open lock and open the gate for the plaintiff. Defendants 1 and 2 have aggrieved thereby filed this original petition. 3. The principal contention raised in the original petition is that the relief sought in I.A.No.969 of 2013 is to enforce an order of injunction which has not been granted and has not been prayed for in the plaint and therefore on that short ground the impugned order is liable to be set aside. Yet another contention raised is that police assistance is sought to enforce an ex-parte order of injunction. 3 O.P.(C) No.1948/2013 Relying on the decision of this Court in **Kochupennu Ambujakshi v. Velutha Kunju** (1992 (2) KLJ 606), it is contended that only a final order passed under Order 39 rule 1 or rule 2 can be enforced with the assistance of the police. 4. I heard Sri.K.K.Mohamed Ravuf, learned counsel appearing for the petitioners and Sri.Biju Abraham, learned counsel appearing for the respondent. I have also gone through the pleadings and the materials on record. The relief sought by the plaintiff in O.S.No.118 of 2013 reads as follows: _“(a) To grant a decree of perpetual prohibitory injunction that plaintiff shall not be evicted from the plaint schedule property by force except under due process of law and restrain the defendants and their men from interfering the peaceful possession of plaint schedule property by the plaintiff until evicted by due process of law._ _(b) To pay cost of the suit by the defendants to the plaintiff.”_ 5. The interim relief sought in I.A.No.521 of 2013 is as follows: _“For the reasons stated in the accompanying affidavit, it is humbly prayed that this Honourable court may be pleased to pass a decree of temporary injunction that plaintiff shall not be evicted from the plaint schedule property by force except under due process of law and restrain the defendants and their men from interfering the peaceful possession of plaint schedule property by the plaintiff until evicted by due process of law and since the matter is very urgent, to pass an ad-interim order of injunction till the disposal of this petition.”_ O.P.(C) No.1948/2013 4 6. By the ad-interim order passed on 9.5.2013, the court below restrained the defendants from forcefully evicting the petitioner from the plaint schedule property except by due process of law till 28.5.2013. By that order, the trial court did not restrain the defendants from interfering with the peaceful possession of the plaint schedule property by the plaintiff. The plaintiff has no case in the plaint or in the affidavit filed in support of the application for injunction that he has a right to take vehicles to his godown through the pathway leading to the residence of the defendants or that he was prevented by the defendants from using the said pathway. However, in I.A.No.969 of 2013 wherein the order impugned in this original petition was passed, he contended that the defendants closed and locked the gate with a view to prevent him from running the business in the plaint schedule property. In I.A.No.969 of 2013 the plaintiff sought police protection to conduct the business in the plaint schedule property and to break open the gate which it was alleged was locked by the defendants. On the terms of the ad-interim order of injunction passed by the trial court, I am of the opinion that the plaintiff could not have prayed for an order directing the Sub Inspector of Police, Kottakkal to break open the gate so as to enable him to take vehicles to the godown. That apart, a learned single Judge of this Court has in O.P.(C) No.1948/2013 5 **Kochupennu Ambujakshi v. Velutha Kunju** (1992 (2) KLJ 606) held that a direction for police aid cannot be granted to enforce an exparte interim order of injunction and that only a final order passed under Order 39 rule 1 or rule 2 can be enforced with the assistance of the police. For that reason also, the petitioners are entitled to succeed. I accordingly allow the original petition, set aside the order dated 31.5.2013 passed by the Court of the Munsiff of Parappanangadi on I.A.No.969 of 2013 in O.S.No.118 of 2013 and dismiss the said application. I also direct the court below to dispose of the application for temporary injunction filed by the plaintiff in O.S.No.118 of 201 3 after hearing learned counsel on both sides expeditiously and in any event within two weeks from the date on which either of the parties produce a certified copy of this judgment. ## **P.N.RAVINDRAN, (JUDGE)** vps O.P.(C) No.1948/2013 6 O.P.(C) No.1948/2013 7