# **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT**
**THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN**
**FRIDAY, THE 10TH DAY OF JANUARY 2020 / 20TH POUSHA, 1941**
**FAO.No.1 OF 2020**
**I.A.No.1842/2019 IN OS 37/2019 OF I ADDITIONAL SUB JUDGE,THIRUVANANTHAPURAM**
## **APPELLANT/COUNTER PETITIONER/PLAINTIFF:**
**MOHAMMED ABDUL KHADER AGED 58 YEARS S/O.MUHAMMED MYTHEEN, RESIDING AT TC NO.39/1145, KHADER MANZIL, PALLY LANE, ATTAKKULANGARA, MANACAUD P.O., THIRUVANANTHAPURAM DISTRICT.**
**BY ADVS. SRI.D.KISHORE SMT.MINI GOPINATH SMT.MEERA GOPINATH SRI.R.MURALEEKRISHNAN (MALAKKARA)**
## **RESPONDENT/PETITIONER/DEFENDANT:**
**BINU G. AGED 40 YEARS S/O.GOPINATHAN, RESIDING AT KRISHNA KRIPA, K.P.XI/614(A), VANCHIYOOR, ALAMCODE, CHIRAYINKEEZH TALUK, THIRUVANANTHAPURAM DISTRICT, PIN-695102.**
**BY ADV. SRI.M.R.ANANDAKUTTAN BY ADV. SMT.M.A.ZOHRA BY ADV. SRI.MAHESH ANANDAKUTTAN BY.ADV. SRI.ARUN A.S**
**THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 10.01.2020, ALONG WITH FAO.2/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**FAO.Nos.1 & 2 OF 2020**
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**IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN**
**FRIDAY, THE 10TH DAY OF JANUARY 2020 / 20TH POUSHA, 1941**
## **FAO.No.2 OF 2020**
**I.A.NO.503/2019 IN OS 37/2019 DATED 17-12-2019 OF I ADDITIONAL SUB JUDGE, THIRUVANANTHAPURAM**
## **APPELLANT/PETITIONER/PLAINTIFF:**
**MOHAMMED ABDUL KHADER AGED 58 YEARS S/O.MUHAMMED MYTHEEN, RESIDING AT TC NO.39/1145, KHADER MANZIL, PALLY LANE, ATTAKKULANGARA, MANACAUD P.O., THIRUVANANTHAPURAM DISTRICT.**
**BY ADVS. SRI.D.KISHORE SMT.MINI GOPINATH SMT.MEERA GOPINATH**
## **RESPONDENT/COUNTER PETITIONER/DEFENDANT:**
**BINU G. AGED 40 YEARS S/O.GOPINATHAN, RESIDING AT KRISHNA KRIPA, K.P.XI/614(A), VANCHIYOOR, ALAMCODE, CHIRAYINKEEZH TALUK, THIRUVANANTHAPURAM DISTRICT, PIN-695102.**
**THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 10.01.2020, ALONG WITH FAO.1/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**FAO.Nos.1 & 2 OF 2020**
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## **J U D G M E N T**
Both these appeals are filed by Sri.Mohammed Abdul Khader, who is the plaintiff in O.S.No.37/2019, on the files of the First Additional Sub Court, Thiruvananthapuram.
2. It transpires that at the time when the Suit was moved, I.A.No.503/2019 has filed by Sri.Mohammed Abdul Khader seeking an interim injunction restraining the defendant - Sri.Binu G., from forcibly evicting him from the plaint schedule property and that it was granted. Subsequently, record shows that Sri.Binu G., filed I.A.No.1842/2019 seeking an interim mandatory injunction against Sri.Mohammed Abdul Khader and for his eviction from the plaint schedule property on the ground that he took possession of the same only subsequent to the order of ex-parte interim injunction granted by the Court in I.A.No.503/2019.
3. These two I.As were heard by the Trial Court and the orders impugned in these two appeals have been issued, dismissing I.A.No.503/2019 filed by Sri.Mohammed Abdul Khader and allowing I.A.No.1842/2019 filed by Sri.Binu G.
**FAO.Nos.1 & 2 OF 2020**
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4. The impugned orders of the Trial Court have been challenged by Sri.Mohammed Abdul Khader on various grounds but primarily that the factum of possession of the property in favour of Sri.Binu G., not having been established or proved, the court below could not have granted an order of interim mandatory injunction going by the judgment of the Hon'ble Supreme Court in **Dorab Cawasji Warden v. Coomi Sorab Warden [1990 (2) SCC 117].**
5. I have heard Sri.D.Kishore, learned counsel appearing for the appellant in both these cases and Smt.M.A.Zohra, learned counsel appearing for the respondent.
6. Since the factual circumstances presented in both these cases are analogous and interdependent, I deem it appropriate to dispose of both these appeals together.
7. The constitutive facts involved in these cases are in a very narrow compass. Sri.Binu G - respondent in these cases, alleges that the plaint schedule property was originally in the possession of two mortgagees, namely a certain Sri.D.Buhari and Sri.Murukan; and that on 08.02.2019, he had paid off the said mortgagees amounting to Rs.10,50,000/-, which was based
**FAO.Nos.1 & 2 OF 2020**
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on an agreement of sale of the said property, executed by Sri.Mohammed Abdul Khader in his favour much earlier. The assertion of Sri.Binu G., is that these facts were not even mentioned in the plaint by Sri.Mohammed Abdul Khader and therefore, that when he was able to produce documents to establish these before the Trial Court, it justifiably vacated the interim order of injunction in I.A.No.503/2019, since it was an ex-parte order issued at the time of the institution of the suit; and had axiomatically allowed I.A.No.1842/2019 filed by him, because Sri.Mohammed Abdul Khader had obtained possession of the property on the strength of the aforementioned interim injunction. The respondent therefore, prays that these appeals be dismissed.
8. In contrario sensu, Sri.D.Kishore, learned counsel for the appellant - Sri.Mohammed Abdul Khader, submits that the factual basis on which the court below proceeded and found against his client is wholly flawed because nothing has been placed on record and established by Sri.Binu G., that the property in question had ever reached his possession either on 08.02.2019 or thereafter. He says that his client was always in
**FAO.Nos.1 & 2 OF 2020**
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possession of the property and therefore, that an order of interim mandatory injunction could not have been granted by the Trial Court going by **Dorab Cawasji Warden** (supra) **.** He thus prays that these appeals be dismissed.
9. I have considered the afore submissions and have also examined the orders impugned in these appeals.
10. The order of the Trial Court in I.A.No.503/2019 is a detailed one while the order in I.A.No.1842/2019 appears to be one issued in consequence to it. I, therefore, have carefully evaluated the order impugned in F.A.O.No.2/2020, namely the order in I.A.No.503/2019 and it is evident therefrom that the Trial Court has found against the plaintiff because the pleadings averred by him did not mention about the alleged mortgages executed in favour of Sri.D.Buhari and Sri.Murukan
or that the same were redeemed by Sri.Binu G, paying an amount of Rs.10,50,000/-. The court below thereafter appears to have concluded that on the redemption of the mortgages by Sri.Binu G, consequent to the amounts afore, he obtained exclusive possession of the building on 08.02.2019 and that it was under his lock and key; and resultantly that the order of
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interim injunction granted to Sri.Mohammed Abdul Khader by it on 25.02.2019 in I.A.No.503/2019 was untenable. As a virtual corollary, the court below allowed I.A.No.1842/2019 filed by Sri.Binu G and directed Sri.Mohammed Abdul Khader to vacate himself from the property in question through an interim mandatory injunction.
11. When I consider the factual circumstances that led to the impugned orders, it is indubitable that the court below has concluded that the redemption of mortgage by Sri.Binu G., gave him the physical possession of the property on 08.02.2019. However, no document appears to have been marked in evidence and nothing has been placed on record in substantiation of the same; and obviously, therefore, this can only be seem to be an inference drawn by the Trial Court based on the pleadings available at the instance of the parties.
12. Even though Smt.M.A.Zohra, vehemently submits that documents in support of her client's assertion - that he had physical possession of the property on 08.02.2019 - has been placed on record through I.A.No.2824/2019, the impugned orders do not refer to such documents nor is there any
**FAO.Nos.1 & 2 OF 2020**
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conclusive evaluation of the assertions that Sri.Binu G was in possession of the property on 08.02.2019. In fact, the impugned orders appear to assume that since Sri.Binu had paid off the mortgage, he became in possession of the property on 08.02.2019 and that it remained under his lock and key.
13. I am afraid that even if the facts, as stated by Sri.Binu G., are true, it could not have been accepted by the court below without a proper proof and without corroborating evidence being led in, for which necessary opportunity ought to have been granted to the parties. This is more so because, as rightly stated by Sri.D.Kishore, in **Dorab Cawasji Warden** (supra), the Hon'ble Supreme Court has made it very clear that an interim mandatory injunction can be granted only in exceptional cases, coming within the exemptions noticed therein; and that where the case of the respondent does not come within one of those exemptions, the issuance of such an order directing possession being handed over to the said respondent would be untenable in law.
14. In summation, I have no doubt that the orders as now passed by the Court below cannot find my favour in the
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absence of proper materials and evidence being led by the parties; and I am of the firm view that the Trial Court must consider these applications again, after affording necessary opportunity to both sides to lead evidence and to produce sufficient documents in substantiation of their respective claims. This is especially because, as rightly submitted by Smt.M.A.Zohra, the interim injunction earlier granted in favour of Sri.Mohammed Abdul Khader was an ex-parte one, issued at the time of institution of the suit and certainly therefore, Sri.Binu G is entitled to oppose the same through every means at its disposal.
15. Consequentially, these appeals are allowed, setting aside the orders impugned herein; with a consequential direction to the court below to reconsider I.A.No.503/2019 and I.A.No.1842/2019, after affording necessary opportunities to both sides to adduce evidence and to produce documents, thus leading to final orders thereon, as expeditiously as is possible but not later than two months from the date of receipt of a copy of this judgment.
In order to enable the Trial Court to act expeditiously in
**FAO.Nos.1 & 2 OF 2020**
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terms of these directions, I direct the parties to mark appearance before the court below on 20.01.2020 and it is made clear that the parties herein will not be entitled to a further notice in this regard from the court below.
**Sd/-**
rp
**DEVAN RAMACHANDRAN JUDGE**
