Khadeeja and Others v. Ramla

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` THURSDAY, THE 27[TH] DAY OF JANUARY 2022 / 7TH MAGHA, 1943 OP(C) NO. 2542 OF 2021 AGAINST THE ORDER/JUDGMENT IN CMA 21/2021 OF SUB COURT, ``` ## **`MUVATTUPUZHA`** ``` IA 1/2021 IN OS 171/2021 OF MUNSIFF COURT,MUVATTUPUZHA ``` ## **`PETITIONER/S:`** ``` 1KHADEEJA AGED 75 YEARS W/O. LATE MAKKAR, PROLIL HOUSE, RANDARKARA KARA, MUVATTUPUZHA VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT., PIN - 686661 2SULAIHA MAKKARA AGED 60 YEARS D/O. LATE MAKKAR, CHITTETHUKUDY HOUSE, ODAKALI ASHMANNOOR POST, NOOLELI KARA, ERNAKUAM DISTRICT, PIN - 683 549. 3SUHARA KOYAN AGED 55 YEARS D/O. LATE MAKKAR, PULICKAKUDIYIL HOUSE, MULAVOOR KARA, MULAVOOR VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT, PIN - 686 673. 4FATHIMA @ KUNJATHU AGED 70 YEARS W/O. LATE MAKKAR, KUDILINGAL HOUSE, MULAVOOR KARA, MULAVOOR VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT, PIN - 686 673. 5ABDUL KAREEM AGED 60 YEARS S/O. LATE MAKKAR, KUDILINGAL HOUSE, MULAVOOR KARA, MULAVOOR VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT, PIN - 686 673. 6SUBAIDA HASSAN AGED 52 YEARS W/O. HASSAN, PARACKAL HOUSE, CHERUVATTOOR KARA, OORAMKUZHY, KOTHAMANGALAM, ERNAKULAM DISTRICT, PIN - 686 691. ``` ## **`OP(C) NO. 2542 OF 2021`** ..2.. , ``` 7SAINABA KAMAR AGED 50 YEARS W/O. KAMAR, VATTEKKATTUKUDY HOUSE, MULAVOOR KARA, MULAVOOR VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT, PIN - 686 673. 8SALMATH SAINUDHEEN AGED 50 YEARS W/O. SAINUDHEEN, ARAKKAMATTOM HOUSE, MULAVOOR KARA, MULAVOOR VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT, PIN - 686 673. BY ADVS. ALIAS M.CHERIAN K.M.RAPHY BRISTO S PARIYARAM NEENU ANNA BABU AJAI ALIAS CHALAPPURAM ``` ## **`RESPONDENT/S:`** ``` RAMLA AGED 48 YEARS W/O. V.K.MUHAMMED, VADAKKEPUTHENPURA HOUSE, CHERUVATTOOR POST, KAKSHAIPPADY, IRAMALLOOR VILLAGE, KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT., PIN - 686691 ``` ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 27.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` OP(C) NO. 2542 OF 2021 ``` ..3.. , ## **JUDGMENT** This is a Petition filed under Article 227 of the Constitution of India. ## 2. The prayers in the Original Petition read thus:- - “I. To set aside Ext. P8/judgment dated 30/09/2021 in C.M.A No. 21 of 2021 passed by the Sub Judge, Muvattupuzha and Ext. P6/order dated 10/08/2021 in I.A. No. 1 of 2021 in O.S. No. 171 of 2021 passed by the Munsiff Court, Muvattupuzha, - II. To dismiss Ext. P3/petition for interim injunction filed by the plaintiff. - III. To direct the Munsiff Court, Muvattupuzha to dispose of the suit O.S No. 171 of 2021 on an early date which is to be fixed by this Hon'ble Court. - IV. To grant such other reliefs which are deemed fit and proper in the facts and circumstances of the case. - V. To grant the costs of the petitioners for these proceedings from respondent.“ 3. The petitioners are the defendants in O.S.No.171 of 2021 on the file of the Munsiff‘s Court, Muvattupuzha. The sole respondent is the plaintiff. 4. The plaintiff instituted the Original Suit for partition. She is the daughter of one Makkar born in wedlock with Asiya, one of his three wives. Makkar died ``` OP(C) NO. 2542 OF 2021 ``` **==> picture [20 x 22] intentionally omitted <==** on 18.06.2009. Asiya also died on 11.01.2013. 5. Defendants are the other legal heirs of late Makkar. 6. Makkar died intestate leaving the plaint schedule properties. The plaintiff is entitled to get 21/192 shares over the plaint schedule properties. 7. The plaintiff requested for partition of plaint schedule properties. Defendants refused to effect partition. 8. Along with the suit for partition, the plaintiff/ respondent filed I.A.No.1/2021 seeking an order of temporary injunction restraining the defendants and their men from inducting strangers in the properties or from encumbering or alienating the same or cutting and removing the valuable trees from the plaint schedule properties or committing any mischief therein. 9. The petitioners/defendants resisted the application. They contended that the plaint schedule properties are not available for partition. ``` OP(C) NO. 2542 OF 2021 ``` **==> picture [20 x 21] intentionally omitted <==** 10. The Trial Court allowed I.A.No.1/2021 granting the temporary injunction as prayed for. The defendants challenged the order dated 10.08.2021 in I.A.No.1/2021 in C.M.A.No.21/2021 before the Subordinate Judge’s Court, Muvattupuzha. The Appellate Court modified the interim order granted by the Trial Court. The order modified as per the judgment of the Appellate Court reads thus:- “Respondents/defendants and their men under them are restrained by an order of temporary prohibitory injunction from inducting strangers to the properties or encumber the same or cut or remove the valuable trees from the plaint schedule properties or commit any mischief therein or transfer their claimed right over plaint schedule property without stating the claimed right of plaintiff and existence of this proceeding, subject to the result of the suit.” 11. The learned counsel for the petitioners/ defendants contended that the Appellate Court failed to take note of the fact that the impugned order would cause injustice to the defendants. It is further submitted that substantial prejudice and injustice would be caused to the petitioners/defendants by granting the interim injunction. ``` OP(C) NO. 2542 OF 2021 ``` ..6.. , The learned counsel further submitted that the respondent/plaintiff failed to establish a prima facie case. Balance of convenience is also in favour of refusing the relief of injunction prayed for. 12. The claim of the respondent/plaintiff that she is one of the legal heirs of late Makkar is not disputed. The main challenge of the petitioners/defendants is that the property is not available for partition. The defence raised by the petitioners/defendants is that on 17.01.1995, the respondent/plaintiff entered into an udampadi with late Makkar by which he gave away her share. The respondent/plaintiff vehementally challenges the plea of the petitioners/defendants. The further defence of the petitioners/defendants is that late Makkar had executed settlement deeds in respect of the plaint schedule properties in favour of the defendants. 13. In the instant case, the legal right assailed by the plaintiff/respondent and its alleged violation are both contested and uncertain. Accordingly, those rights are to ``` OP(C) NO. 2542 OF 2021 ``` **==> picture [20 x 21] intentionally omitted <==** be established at the trial on evidence. 14. The grant of an interlocutory injunction during the pendency of legal proceedings is a matter requiring the exercise of discretion of the Court. While exercising the discretion, the Court applies the following tests - (i) whether the plaintiff has a prima facie case; (ii) whether the balance of convenience is in favour of the plaintiff ;and (iii) whether the plaintiff would suffer an irreparable injury if his prayer for interlocutory injunction is disallowed. The decision whether or not to grant an interlocutory injunction has to be taken at a time when the existence of the legal right assailed by the plaintiff and its alleged violation are both contested and uncertain and remain uncertain till they are established at the trial on evidence. Relief by way of interlocutory injunction is granted to mitigate the risk of injustice to the plaintiff during the period before that uncertainty could be resolved. The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right ``` OP(C) NO. 2542 OF 2021 ``` **==> picture [20 x 22] intentionally omitted <==** for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. The need for such protection has, however, to be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated. The court must weigh one need against another and determine where the “balance of convenience“ lies [Vide **M/s. Gujarat Bottling Company Ltd.** v. **Coca Cola Company** (AIR 1995 SC 2372, P. 43)]. 15. The leamed Subordinate Judge/the Appellate Court recorded the finding that if any strangers are inducted or the plaint schedule properties are alienated or encumbered, the same will cause irreparable loss and injury to the plaintiff as she may not be able to enjoy the fruits of the decree that may be passed in her favour. Accordingly, the learned Subordinate Judge restrained ``` OP(C) NO. 2542 OF 2021 ``` **==> picture [20 x 22] intentionally omitted <==** the petitioners /defendants from transfering their claimed right over the plaint schedule property without stating the claimed right of the plaintiff and the pendency of the proceedings. 16. On an analysis of the entire materials on record, this Court is of the view that the Court below has exercised the discretion reasonably and in a judicial manner. In **Wander Limited vs. Antox India Private Limited** (1990 Supp. SCC 727), the Hon'ble Apex 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 could 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 a 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". ## 17. This view was reiterated by the Apex Court in ``` OP(C) NO. 2542 OF 2021 ``` **==> picture [26 x 22] intentionally omitted <==** **Seema Arshad Zaheer v. Municipal Corporation** [2006 (4) KLT 65 (SC)]. After appreciating all the materials placed before this court and the existing circumstances, this Court is of the view that the Subordinate Judge's Court exercised its jurisdiction fairly and reasonably. I find no reason to interfere with the order of the court below. 18. 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. 19. 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 ``` OP(C) NO. 2542 OF 2021 ``` **==> picture [26 x 22] intentionally omitted <==** of justice occasioned thereby. Viewed on the touchstone of the principles discussed above, the judgment impugned requires no interference under Article 227 of the Constitution. 20. The learned counsel for the petitioners further prayed for a direction to the Trial Court to dispose of the Original Suit in a time bound manner. It is submitted that the pleadings are complete and the matter is ripe for trial. 21. The Trial Court shall dispose of the Original Suit as expeditously as possible, untrammelled by any of the observations made in the impugned judgment (Ext.P8), at any rate, within a period of three months from the date of reciept of a certified copy of this judgment. The Original Petition is disposed of as above. **Sd/K. BABU, JUDGE** kkj ``` OP(C) NO. 2542 OF 2021 ``` ..12.. , ## **`A PPENDIX OF OP(C) 2542/2021`** ## `PETITIONER EXHIBITS` - `Exhibit P1 TRUE COPY OF PLAINT IN O.S NO. 171 OF 2021 ON THE FILE OF THE MUNSIFF COURT, MUVATTUPUZHA.` - `Exhibit P2 TRUE COPY OF WRITTEN STATEMENT IN O.S NO. 171 OF 2021 ON THE FILE OF THE MUNSIFF COURT, MUVATTUPUZHA.` - `Exhibit P3 TRUE COPY OF PETITION I.A NO. 1 OF 2021 IN O.S NO. 171 OF 2021 ON THE FILE OF THE MUNSIFF COURT, MUVATTUPUZHA.` - `Exhibit P4 TRUE COPY OF COUNTER AFFIDAVIT IN I.A NO. 1 OF 2021 IN O.S NO. 171 OF 2021 ON THE FILE OF THE MUNSIFF COURT, MUVATTUPUZHA.` - `Exhibit P5 TRUE COPY OF REPLY AFFIDAVIT IN I.A NO. 1 OF 2021 IN O.S NO. 171 OF 2021 ON THE FILE OF THE MUNSIFF COURT, MUVATTUPUZHA.` - `Exhibit P6 TRUE COPY OF ORDER DATED 10.8.2021 IN I.A NO. 1 OF 2021 IN O.S NO. 171 OF 2021 PASSED BY THE MUNSIFF COURT, MUVATTUPUZHA.` - `Exhibit P7 TRUE COPY OF THE APPEAL MEMORANDUM IN C.M.A NO. 21 OF 2021 FILED BY THE DEFENDANTS BEFORE THE SUB COURT, MUVATTUPUZHA.` - `Exhibit P8 TRUE COPY OF JUDGMENT IN C.M.A NO. 21 OF 2021 PASSED BY THE SUB COURT, MUVATTUPUZHA.`