High Court of KeralaDivision Bench2022-06-30Appeal disposed of as withdrawn in terms of the...

Jose Joseph v. Appachan alias P.D. Abraham and others

Case / Petition Number:RFA No.514 of 2017

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: ANIL K. NARENDRAN
P.G. AJITHKUMAR
Judgment Date: 2022-06-30
Court Decision / Holding: The appeal is disposed of in terms of the compromise recorded in I.A.No.2 of 2022. The compromise petition is to form part of the decree. The court fee paid on the Memorandum of Appeal shall be refunded to the appellants. Noorudheen v. Muhammed Najmal [2021 (4) KHC 257] is cited to justify the refund. The matter stands settled between the parties, and no further adjudication on the merits of the original injunction claim is required.
Final Disposition: Appeal disposed of as withdrawn in terms of the compromise; compromise to form part of the decree; court fee refunded; criminal complaint not pursued.

Parties to the Case

Appellants / Petitioners

JOSE JOSEPH, S/O.THOMMAN JOSEPH, KOCHUPURAKKAL, 28/173, CHEVARAMBALAM, P.O.NELLIKODE, KOZHIKODE-768706
C.P.USMAN, S/O.KUNJUKUTTY, SHAMNAS, PANNIYANKARA, KALLAYI P.O., KOZHIKODE-673 003

Respondents

APPACHAN ALIAS P.D.AABRAHAM (DELETED) S/O.DEVASSYA, SWARGACHITHRA, BANK ROAD, KALLATHINKUNNU, KOZHIKODE-673 001.
P.A. SANEESH (DELETED), S/O.P.D.ABRAHAM, SWARGACHITHRA, BANK ROAD, KALLATHINKUNNU AMSOM DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT.
MANISH ABRAHAM (DELETED), S/O.P.D.ABRAHAM, SWARGACHITHRA, BANK ROAD, KALLATHINKUNNU AMSOM DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT.
M/S. TRADERS TOWER CONSTRUCTIONS PROPERTY, DEVELOPERS PVT. LTD., REPRESENTED BY ITS MANAGING DIRECTOR, B. RAVINDRAN PILLAI, DOOR NO. 5, 2486, "SWARGACHITHRA", BANK ROAD, KALATHINKUNNU AMSOM DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT.

Legal Representation & Advocates

Counsels for Petitioners

• Lal George (Adv.)

Counsels for Respondents

• G.P. Shinod (Adv.)
• M. Gopikrishnan Nambiar (Adv.)

Case Synopsis & Summary

This Regular First Appeal arises from O.S. No.495 of 2012 on the file of the Sub Court, Kozhikode, where the plaintiffs sought a perpetual injunction restraining the defendants from trespassing upon, or from delivering possession of, the plaint schedule rooms except to the plaintiffs. A pending related suit, O.S. No.589 of 2011, claimed specific performance of a lease dated 11.08.2008. The Trial Court dismissed both suits, and the appellants challenged the Sub Court’s decree by filing A.S. No.96 of 2017 under Sec.96 read with Order XLI Rule 1 CPC. On admission (19.12.2017), the matter proceeded for hearing. On the listing date, the parties informed the court that they had settled the dispute by a compromise, which is recorded in I.A. No.2 of 2022. The compromise explicitly states that Defendants 1–3 have absolutely no subsisting interest in the plaint schedule property, that the appellants will withdraw both appeals and all related proceedings, and that the 4th respondent and appellants will have no claim against the plaint schedule property. It also provides for refund of court fee and for the respondent to refrain from pursuing a criminal complaint connected to prior judgments. Noorudheen v. Muhammed Najmal is cited to justify the refund of court fee. The appeal is disposed of in terms of the compromise, with the compromise petition made part of the decree.

Provisions of Law Cited

Code of Civil Procedure, 1908; Section 96 read with Order XLI Rule 1

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellants originally pursued a claim for perpetual injunction against trespass and preservation of possession of the plaint schedule property, challenging the Sub Court’s judgment in O.S.495 of 2012 and seeking protection of their rights under the related lease and other proceedings. On the date of hearing, however, their counsel and that of the 4th respondent informed the Court that the dispute had been resolved through a compromise, with a mutual withdrawal of the appeals and related proceedings, in full and final settlement. The applicants requested disposal of the appeal in terms of the compromise, with the compromise to form part of the judgment and with refund of the court fee as contemplated by the compromise.

Contentions of Respondents

The respondents joined in the settlement, acknowledging that the defendants 1–3 had no subsisting interest in the plaint schedule property and consenting to withdrawal of the appeals and related proceedings. They agreed to the terms that the appellants would withdraw the appeals, that court fee would be refunded, and that no further claims against the plaint schedule property would arise. Additionally, they agreed not to pursue any criminal complaint connected to the prior judgments, following the compromise and in consideration of the settlement reached through mediators and involved parties.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Noorudheen v. Muhammed Najmal	2021 (4) KHC 257	Positive	Cited to justify refund of court fee in light of the compromise, indicating support for the settlement’s financial consequence.

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Extracted Judgment Text

Exact text extracted from official judgment records.

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR THURSDAY, THE 30[TH] DAY OF JUNE 2022 / 9TH ASHADHA, 1944 ``` ``` RFA NO.514 OF 2017 ``` ``` AGAINST THE JUDGMENT AND DECREE IN OS NO.495/2012 ON THE ``` ``` FILE OF THE SUB COURT, KOZHIKODE ``` ## **`APPELLANTS:`** - **`1 JOSE JOSEPH, S/O.THOMMAN JOSEPH, KOCHUPURAKKAL, 28/173, CHEVARAMBALAM, P.O.NELLIKODE, KOZHIKODE-768706`** - **`2 C.P.USMAN, S/O.KUNJUKUTTY, SHAMNAS, PANNIYANKARA, KALLAYI P.O., KOZHIKODE-673 003. BY ADVS.K.K.CHANDRAN PILLAI (SR.) S.AMBILY LAL GEORGE MANU SRINATH`** ## **`RESPONDENTS:`** - **`1 APPACHAN ALIAS P.D.AABRAHAM (DELETED) S/O.DEVASSYA, SWARGACHITHRA, BANK ROAD, KALLATHINKUNNU, KOZHIKODE-673 001.`** - **`2 P.A. SANEESH (DELETED), S/O.P.D.ABRAHAM, SWARGACHITHRA, BANK ROAD, KALLATHINKUNNU AMSOM DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT.`** - **`3 MANISH ABRAHAM (DELETED), S/O.P.D.ABRAHAM, SWARGACHITHRA, BANK ROAD, KALLATHINKUNNU AMSOM DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT. R1 TO R3 ARE DELETED FROM THE PARTY ARRAY AS PER ORDER DATED 30.06.2022 IN I.A.NO.1 OF 2022.`** - **`4 M/S. TRADERS TOWER CONSTRUCTIONS PROPERTY, DEVELOPERS PVT. LTD., REPRESENTED BY ITS MANAGING DIRECTOR, B. RAVINDRAN PILLAI, DOOR NO. 5, 2486, "SWARGACHITHRA", BANK ROAD, KALATHINKUNNU AMSOM DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT. BY ADVS.`** RFA No.514 of 2017 **==> picture [10 x 9] intentionally omitted <==** ``` M.GOPIKRISHNAN NAMBIAR ``` ``` P.GOPINATH (SR.) K.JOHN MATHAI JOSON MANAVALAN KURYAN THOMAS PAULOSE C. ABRAHAM ``` ``` THIS REGULAR FIRST APPEAL HAVING COME UP FOR ADMISSION ON 30.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` RFA No.514 of 2017 3 ## **JUDGMENT** ## **Anil K. Narendran, J.** The appellants, who are the plaintiffs in O.S.No.495 of 2012 on the file of the Sub Court, Kozhikode, a suit filed seeking injunction restraining the defendants from trespassing or giving possession of the plaint schedule rooms other than to the plaintiffs, have filed this appeal as A.S.No.96 of 2017 on the file of the Addl. District CourtIV, Kozhikode, under Section 96 read with Order XLI Rule 1 of the Code of Civil Procedure, 1908, challenging the judgment and decree dated 15.03.2017 of the Sub Court, Kozhikode, in O.S.No.495 of 2012, which was later transferred to this Court and renumbered as R.F.A.No.514 of 2017. 2. On 19.12.2017, this Court admitted the matter on file. Adv.Lal George, the learned counsel, entered appearance for the appellants. Adv.G.P. Shinod, the learned counsel, entered appearance for respondents 1 to 3. Sri.M. Gopikrishnan Nambiar, the learned counsel, entered appearance for the 4[th] respondent. 3. Today, when this case is taken up for consideration, the learned counsel for the appellants and also the learned counsel for the 4[th] respondent would submit that the appellants and the 4[th] respondent have settled the disputes by way of compromise, as evident from the compromise petition, i.e., RFA No.514 of 2017 4 I.A.No.2 of 2022, and therefore, this appeal may be permitted to be withdrawn in terms of that compromise petition. The compromise petition reads thus: “1. The above appeal arises out of the judgment and decree dated 15.03.2017 in O.S. No. 495 of 2012 of the Sub Court, Kozhikode. The respondent herein is the additional 4[th] defendant in the suit. The said suit was filed by the petitioners herein for perpetual injunction. The appellants had also filed O.S No. 589 of 2011 before the Sub Court, Kozhikode for specific performance of a lease agreement dated 11.08.2008 alleged to have been executed by the plaintiffs and the first defendant in the suit. Both the suits were jointly tried. The Trial Court dismissed both the suits. As against the dismissal of O.S. No. 589 of 2011, the appellants had filed R.F.A No. 413 of 2017 before this Hon'ble Court. Both the above appeals are pending consideration before this Hon'ble Court. 2. Defendants 1, 2 and 3 in the suit have absolutely no subsisting interest in the plaint schedule property. Therefore they were not made party to this compromise petition. 3. Pending the above appeals, on the intervention of mediators, the appellants and the respondent herein have decided to settle the disputes. The appellants have agreed to withdraw both the above appeals and also all disputes/proceedings pending in various courts. 4. Based on the settlement, the RFA No.514 of 2017 and RFA No.413 of 2017 pending before this Hon'ble Court may be dismissed as withdrawn. 5. The appellants shall have no claim whatsoever, against RFA No.514 of 2017 5 the respondent in respect of the plaint schedule property. 6. The court fee paid on the Memorandum of Appeal may be refunded to the appellants. 7. In view of the settlement, the respondent agree not to pursue with the criminal complaint filed against the appellants on the basis of the observation made in the common judgment in O.S.No.589 of 2011 and O.S.No.495 of 2012 and inform the authorities accordingly. It is therefore, prayed that this Hon’ble Court may be pleased to allow the above compromise petition and dismiss the above appeal as withdrawn. The compromise petition may be made part of the decree.” 4. In such circumstances, this appeal is disposed of in terms of the compromise recorded as above. A copy of the compromise petition shall form part of the judgment. In view of the decision of this Court in **Noorudheen v. Muhammed Najmal [2021 (4) KHC 257]** , the court fee paid in this appeal shall be refunded to the appellant. Sd/- **ANIL K. NARENDRAN** **JUDGE** Sd/- **P.G. AJITHKUMAR JUDGE** **yd** PTO RFA No.514 of 2017 **==> picture [409 x 590] intentionally omitted <==** 6 RFA No.514 of 2017 **==> picture [10 x 9] intentionally omitted <==** **----- Start of picture text -----** 7 **----- End of picture text -----** **==> picture [401 x 586] intentionally omitted <==** RFA No.514 of 2017 **==> picture [10 x 9] intentionally omitted <==** **----- Start of picture text -----** 8 **----- End of picture text -----** **==> picture [409 x 586] intentionally omitted <==**