High Court of KeralaSingle Judge2013-04-12O.P.(C) No. 1445/2013 allowed; Ext.P3 order set...

O.P.(C) No. 1445 of 2013 (O)

Case / Petition Number:OP(C). No. 1445 of 2013 (O)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Thomas P. Joseph
Judgment Date: 2013-04-12
Court Decision / Holding: Ext.P3 order dated 26.03.2013 in I.A. No. 925 of 2013 in O.S. No. 329 of 2012 is set aside; I.A. No. 925 of 2013 is dismissed. The judgment clarifies that the first respondent may implead the petitioner as a party in the suit or other pending applications if necessary, but the present order does not bar future relief in accordance with proper proceedings.
Final Disposition: O.P.(C) No. 1445/2013 allowed; Ext.P3 order set aside; IA 925/2013 dismissed; petitioner may be impleaded in future proceedings if necessary.

Parties to the Case

Appellants / Petitioners

T.P. Varghese @ Varkey

Respondents

FAST LINE BUILDERS & DEVELOPERS KERALA (Pvt) Ltd. (now FAST LINE PROJECT PVT. LTD.)
The Joint Registrar, Kannur University
The Assistant Registrar, Kannur University

Legal Representation & Advocates

Counsels for Petitioners

• Sri K.A. Manzoor Ali
• Sri Biju C. Abraham

Counsels for Respondents

• Sri V.A. Muhammed, SC, Kannur University

Case Synopsis & Summary

Notice was issued to the 1st respondent through a special messenger. The messenger reported that service on the 1st respondent could not be completed at his residence; the 1st respondent’s mother was contacted and declined to receive the notice. The petitioner, a third party to the suit before the Principal Sub Judge, Thalassery, challenges Ext.P3, the order dated 26.03.2013 in I.A. No. 925 of 2013 in O.S. No. 329 of 2012, which purportedly directed the police to assist in enforcing an interim injunction against respondents 2 and 3 from allotting construction work to others. The 1st respondent contends he was the highest bidder and that the university should have accepted his bid, but that the work was being allotted to the petitioner without proper qualification. The petitioner asserts that Ext.P3 was passed without his being made a party to the suit, injunction application or IA 925/2013, and that he started construction in 2012 after being handed the project by respondents 2 and 3, making Ext.P3’s coercive direction harmful to his interests. The court refrains from deciding the merits of the injunction but examines whether Ext.P3 could affect a non-party. Citing L.D. Meston School Society v. Kashi Nath and Balakrishnan Nair v. Mohammed Kunju, the court reasons that an injunction cannot bind a person not a party. It also cites Manoj Kumar v. Guruvayoor Devaswom to discuss Article 227 challenges. The petition is allowed: Ext.P3 is set aside, IA 925/2013 is dismissed, and the court clarifies that the first respondent may implead the petitioner in future proceedings if needed.

Provisions of Law Cited

Article 227, Constitution of India

Legal Doctrines & Maxims

No injunction can operate against a person who is not a party to the proceeding.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contended that Ext.P3 injunctive order adversely affects him though he was not a party to the suit, injunction application, or IA 925/2013. He submitted that he began construction in 2012 under Ext.R2 and that Ext.P3, issued without notice to him, binds his interests improperly. He invoked Article 227 to challenge the order and urged that the court’s role is to prevent enforcement of orders affecting non-parties, not to grant relief injurious to a third party who was not heard.

Contentions of Respondents

The respondents argued that the injunction order was legally issued against the relevant parties (respondents 2 and 3) and that the work had been allotted to the petitioner only after certain proceedings. They maintained the order’s enforceability and contended the petitioner’s challenge should be addressed within the suit or via a proper appellate remedy, not by exceeding defendants’ legitimate rights through the present petition.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
L.D. Meston School Society v. Kashi Nath	AIR (38) 1951 Allahabad 558	Positive	Used to support the proposition that injunction cannot operate against a person who is not a party to the proceeding.
Balakrishnan Nair v. Mohammed Kunju	1964 KLT 12	Positive	Cited for the principle that a court ought not to issue such an injunction against non-parties.
Manoj Kumar v. Guruvayoor Devaswom	2011(2) KLT 1022	Positive	Cited to discuss challenging an injunction order under Article 227 when the order is per se illegal and affects a non-party.

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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 THOMAS P.JOSEPH** ## **FRIDAY, THE 12TH DAY OF APRIL 2013/22ND CHAITHRA 1935** ## **OP(C).No. 1445 of 2013 (O)** **--------------------------OS.329/2012 of PRL.SUBORDINATE JUDGE, THALASSERY** **PETITIONER(S) :** **T.P.VARGHESE @ VARKEY, AGED 47 YEARS PROPRIETOR, M/S.T.P.CONSTRUCTIONS, IST FLOOR AVM COMPLEX, CHIRANGARA, KORATTY SOUTH.P.O. TRISSUR. 680 308.** **BY ADVS.SRI.K.A.MANZOOR ALI SRI.BIJU .C. ABRAHAM** **RESPONDENT(S) :** ## **1. FAST LINE BUILDERS & DEVELOPERS KERALA** - **PVT. LATER NAME CHANGED AS FAST LINE PROJECT PVT. LTD., DELTA TOWER, THANA, KANNUR REPRESENTED BY ITS MANAGING DIRECTOR P.V.AKHIL S/O.SANTHOSH, AGED 27 YEARS** **RESIDING AT AMRITHA NIRMALAGIRI POST, KUTHUPARAMBA KANNUR. 670 643.** **2. THE JOINT REGISTRAR, KANNUR UNIVERSITY, MANGATTUPARAMBA, KANNUR KANNUR UNIVERSITY CAMPUS POST. 670 546.** ## **3. THE ASST. REGISTRAR** - **KANNUR UNIVERSITY, UNIVERSITY CENTRE, PALAYAD AMSOM DHARMADAM AMSOM, CHIRAKKUNI, TELLICHERY. 670 101.** **R2 & R3 BY ADV. SRI.V.A.MUHAMMED, SC, KANNUR UNIVERSITY** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 12-04-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BP** ## **OP(C).No. 1445 of 2013 (O)** ## **---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS -------------------------------------** - **P1TRUE COPY OF THE AGREEMENT NO.29/2012-13 WORKS CONTRACT ISSUED BY THE REGISTRAR OF THE UNIVERSITY TO THE PETITIONER.** - **P2TRUE COPY OF THE CHEQUE DATED 20.11.2012.** - **P2(A)- TRUE COPY OF THE CHEQUE DATED 5.12.2012.** - **P2(B)- TRUE COPY OF THE CHEQUE DATED 22.12.2012.** - **P2(C)- TRUE COPY OF THE CHEQUE DATED 23.1.2013.** - **P2(D)- TRUE COPY OF THE CHEQUE DATED 12.3.2013.** - **P3TRUE COPY OF THE ORDER DATED 26.3.2013 IN I.A.NO.925/2013 IN OS NO.329/2012 OF THE COURT OF THE PRINCIPAL SUBORDINATE JUDGE, THALASSERY.** - **P4TRUE COPY OF THE COUNTER STATEMENT DATED 17.11.2012 FILED BY THE UNIVERSITY IN I.A.NO.2974/2012.** - **P5TRUE COPY OF THE WRITTEN STATEMENT DATED 11.3.2013 FILED BY THE DEFENDANTS IN OS NO.329/2012.** - **RESPONDENT(S)' ANNEXURE : ---------------------------------------** **ANNEXURE R1: COPY OF NOTICE INVITING RETENDERS NO.PLD/E/SO/GENERAL 2012 DT 25.08.2012 ISSUED BY KANNUR UNIVERSITY. ANNEXURE R2: COPY OF LETTER NO.PLD/E/SO/GEN/11 DT 28/9/2012 ISSUED BY R2 UNIVERSITY.** **//TRUE COPY//** **P.A. TO JUDGE** **BP** ## **THOMAS P. JOSEPH, JUDGE.** **- - - - - - - - - - - - - - - - - O.P.(C). No.1445 of 2013 - - - - - - - - - - - - - - - - Dated this the 12[th] day of April, 2013.** ## **JUDGMENT** Notice was issued to the 1[st] respondent/plaintiff through special messenger. The special messenger has submitted a report that as per order, notice was attempted to be served on the 1[st] respondent. But, when he was contacted over telephone, it was directed that notice be served at his residence. The special messenger thereupon went to the residence of the 1[st] respondent. There, when his mother was contacted and requested to receive the notice she, after contacting the 1[st] respondent over telephone refused to accept the notice. Since notice was attempted to be served on the mother staying with the 1[st] respondent and that was refused, there is sufficient service on the 1[st] respondent. Respondents 2 and 3 appear through Standing Counsel. 2. Petitioner is a third party to the proceeding before learned Principal Sub Judge,Thalassery and has challenged Ext.P3, order dated 26.03.2013 on I.A. No. 925 of 2013 in O.S. No. 329 of 2012. O.P.(C) No. 1445/2013 : 2 : 3. First respondent filed that suit against respondents 2 and 3 for a decree for prohibitory injunction and to restrain respondents 2 and 3 from allotting construction of the university building to anybody else. According to the 1[st] respondent, he being the highest bidder, his bid should have been accepted. But, without accepting that bid, respondents 2 and 3 attempted to allot the work to the petitioner, who according to the 1[st] respondent is the 2[nd] lowest tenderer and does not possess the required qualification. 4. 1[st] respondent filed I.A. No. 2974 of 2012 for an order of temporary injunction in the above line. Learned Principal Sub Sub Judge, Thalassery, as the learned counsel submitted granted ex parte, ad interim order of injunction against respondents 2 and 3 as above stated. Later, purportedly, to enforce the said order of injunction, the 1[st] respondent filed I.A No. 925 of 2013 requesting that construction of building may be stopped with the assistance of the SHO, Kannur. That application was allowed by Ext.P3, order. 5. Learned counsel for petitioner contends that notwithstanding that 1[st] respondent was aware that the O.P.(C) No. 1445/2013 : 3 : construction work is going to be allotted to the petitioner, he was not made a party in the suit, in the application for injunction or even in I.A. No. 925 of 2013. Learned counsel submits that petitioner has already started construction of the building. It is submitted that the work was handed over to the petitioner (by the respondents 2 and 3) on 29.05.2012 and as directed by the respondents 2 and 3 as per Ext.R2, notice, petitioner has executed Ext.P1, agreement in favour of respondents 2 and 3 on 08.10.2012. It is also submitted that learned Sub Judge passed the ex parte, ad interim order of injunction on 08.10.2012. Since Ext.P3, order affects the interest of petitioner who is not a party to the proceeding, that order cannot be sustained and it is liable to be questioned and interfered with under Article 227 of the Constitution of India, it is argued. 6. Learned Standing Counsel for respondents 2 and 3 contends that the order of injunction against respondents 2 and 3 is not legal and proper. It is also submitted that the work is already allotted to the petitioner. 7. I am not, in this proceeding on the question whether learned Sub Judge is justified in granting an ex parte, interim O.P.(C) No. 1445/2013 : 4 : order of injunction. I am at the question whether Ext.P3, order could have been passed to affect the interest of petitioner who is not a party to the proceeding. 8. A reading of Ext.P3, order would show that even in the plaint and the application for temporary injunction the 1[st] respondent has stated that respondents 2 and 3 are attempting to entrust the work to the petitioner. Still petitioner was not made a party in the suit or application for injunction or, even in I.A. No.925 of 2013 on which Ext.P3, order is passed. The documents produced by petitioner and respondents 2 and 3 prima facie support the contention petitioner has raised about his starting construction of the building. 9. It is held time and again that no order of injunction could be passed to affect a person who is not a party to the proceeding. In **L.D. Meston School Society v. Kashi Nath** (AIR (38) 1951 Alahabad 558) it is held that where a person against whom the order of injunction is to operate who is not made a party, injunction cannot be issued. In **Balakrishnan Nair v. Mohammed Kunju** - 1964 KLT 12, it is held that the court ought not to issue an order or injunction against one, who O.P.(C) No. 1445/2013 : 5 : is not a party to the proceeding before it. 10. Ext.P3, order directs the SHO, Kannur to give necessary police aid to stop construction work (being carried on by the petitioner). Needless to say that Ext.P3, order affects interest of petitioner who was not given notice of any of the proceedings before the learned Sub Judge. 11. May be that petitioner could have challenged the order of injunction by way of appeal seeking leave of the appellate court. In **Manoj Kumar v. Guruvayoor Devaswom** (2011(2) KLT 1022) this Court has held that when the order of injunction is per se illegal, it can be challenged in a proceeding under Article 227 of the Constitution of India by any affected person who is not made a party to the suit, without recourse to the remedy by way of appeal. I am inclined to think that petitioner is entitled to challenge Ext.P3, order under Article 227 of the Constitution of India. 12. I make it clear that I have not expressed any opinion on the contentions respondents have raised in the suit and the application for injunction. I also make it clear that I am concerned in this proceeding only with Ext.P3, order insofar as it : 6 : O.P.(C) No. 1445/2013 affected the interest of the petitioner who is not a party to the suit or the applications. Resultantly, this original petition is allowed as under: - 1.Ext.P3 order dated 26.03.2013 on I.A No. 925 of 2013 in - O.S. No. 329 of 2012 of the Principal Sub Court, Thalassery is set aside. - 2.I.A. No. 925 of 2013 will stand dismissed. - 3.It is made clear that this judgment will not stand in the way of the 1[st] respondent impleading petitioner as a party to the suit or other pending applications as the case may be and seeking appropriate relief, temporary or otherwise in the matter. ## **sd/- THOMAS P. JOSEPH, JUDGE.** ## **rv** O.P.(C) No. 1445/2013 : 7 :