High Court of KeralaSingle JudgeOriginal petition allowed; Exts.P12 and P13 set...

Padma Kumari Amma v. Padmaraj K.S., Vishnu P Vijay and Anil Kumar

Case / Petition Number:OP(C) NO. 527 OF 2023

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • C.S.Dias
Judgment Date
2023-03-06
Court Decision / Holding
Exts.P12 and P13 are set aside. The Subordinate Judge, Thiruvalla, is directed to transfer IA 597/2015 in CMA 5/2015 to renumbered form as an application in OS 705/2014. The Munsiff, Thiruvalla, shall consider and dispose of the renumbered application in accordance with law, after giving both sides an opportunity to substantiate their contentions, expeditiously.
Final Disposition
Original petition allowed; Exts.P12 and P13 set aside; IA 597/2015 transferred to the Trial Court (renumbered as an application in OS 705/2014); Munsiff to dispose expeditiously after hearing both sides; Court to ensure proper forum for proceedings.

Parties to the Case

Appellants / Petitioners

  • Padma Kumari Amma

Respondents

  • Padmaraj K.S
  • Vishnu P Vijay
  • Anil Kumar

Legal Representation & Advocates

Counsels for Petitioners

  • • Raju Joseph
  • • Sindhu Ravichandran

Counsels for Respondents

  • • Haridas

Case Synopsis & Summary

This original petition under Article 227 of the Constitution of India challenges Exts.P12 and P13, two orders passed in IA Nos.628/2019 and 597/2015 in CMA No.5/2015 before the Subordinate Judge, Thiruvalla. The suits OS Nos.704/2014 and 705/2014, filed by respondents 1 and 3 for declaration, possession, and injunction, were resisted by the petitioner. The lower appellate court granted a common injunction in CMA Nos.5/2015 and 6/2015, prompting the respondents to move IA 597/2015 alleging violation of the injunction. The trial court later dismissed IA 597/2015, while IA 628/2019 sought to dismiss IA 597/2015; Exts.P12 and P13 challenged these orders. The petitioner contends that continuing with the prosecution of the injunction-violation application after disposal of the appeals undermines the scheme of the Civil Procedure Code and results in parallel proceedings in two fora, contrary to law. The Court recalls the principle laid down in Sudarsana Pillai R. and others vs. K. Thulaseedharan Nair and others (2017) that a deeming approach should be adopted so that the main proceedings are heard in the court where they are pending, and that appellate proceedings should not spawn independent prosecution. The Court sets aside Exts.P12 and P13, directs transfer of IA 597/2015 to the Trial Court re-numbered as in OS 705/2014, and orders expeditious disposal after hearing both sides. The judgment also emphasizes the exercise of superintendence under Article 227 to correct errors.

Provisions of Law Cited

Code of Civil Procedure, Order XXXIX, Rule 2ACode of Civil Procedure, Order XXXIXConstitution of India, Article 227

Legal Doctrines & Maxims

  • Procedural statutes should be understood in their scheme rather than in literal terms; the forum for R.2A applications lies in the court where the main proceeding is pending to avoid parallel proceedings.
  • Deeming effect of orders for the purposes of injunctive applications (as discussed in related CPC provisions) to ensure single forum adjudication for the lis.
  • Power of superintendence under Article 227 of the Constitution of India to correct erroneous orders and ensure lawful conduct of proceedings.

Submissions & Arguments

Contentions of Appellants / Petitioners

The applicant contends that Exts.P12 and P13 are erroneous and unsustainable, as the lower appellate court had already disposed of CMA 5/2015 and CMA 6/15, and a fresh prosecution in IA 597/2015 cannot proceed. Allowing continuation would create two parallel proceedings concerning the same subject matter, contrary to the scheme of the CPC. The appropriate remedy is to transfer IA 597/2015 to the Trial Court for consideration in OS 705/2014 (renumbered) and to dispose of it expeditiously after hearing both sides. The applicant relies on the ratio in Sudarsana Pillai R. that the main lis should be treated within the principal forum and that continuing prosecution after appeal is improper, and invokes Article 227 to correct the errors by this Court.

Contentions of Respondents

The respondents contend that the appellate court retained jurisdiction to entertain IA 597/2015 despite disposal of the CMA appeals, as violation of temporary injunction remains a live matter. They argue that adjournment for evidence was appropriate and that parallel proceedings are permissible to ensure enforcement of injunctions until the underlying orders are properly tested. Reference is made to established practice under Order 39 Rule 2A and the need for injunctive compliance in the forum where the main proceedings are pending.

Cited Precedents (2)

Case NameCitationTreatmentExplanation
Sudarsana Pillai R. and another vs. K.Thulaseedharan Nair and others2017 (4) KHC 13PositiveThe Division Bench held that a procedural statute should be interpreted in light of the scheme of the CPC, and that the appellate court cannot continue with a prosecution after appeals are disposed of; the matter must be handled by the proper forum.
OP(C) No.232/2016OP(C) No.232/2016Mentioned OnlyCited to illustrate the concept of deeming effect in injunctive applications; not a central binding authority for the present decision.

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Extracted Judgment Text

Exact text extracted from official judgment records.

OP(C) NO. 527 OF 2023 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 6[TH] DAY OF MARCH 2023 / 15TH PHALGUNA, 1944 OP(C) NO. 527 OF 2023** **AGAINST THE ORDER/JUDGMENT IN CMA 5/2015 OF SUB COURT,** ## **THIRUVALLA** ## **PETITIONER/RESPONDENT/COUNTER PETITIONER:** PADMA KUMARI AMMA, AGED 60 YEARS, W/O VIJAYAN, PADMALAYAM, THIRUMOOLAPURAM PO ERUVELLIPRA MURI, THIRUVALLA TALUK PIN 689101 BY ADVS. RAJU JOSEPH SINDHU RAVICHANDRAN ## **RESPONDENTS/APPELLANTS/PLAINTIFF:** 1 PADMARAJ K.S, AGED 42 YEARS, S/O LATE K.P SUKUMARA PILLAI, PALIYIL THEKKUMMURIYAL VEEDU, ERUVELLIPRA MURI, THIRUVLLA VILLAGE REPRESENTED BY POA HOLDER PADMA S PILLAI, W/O LATE K.P SUKUMARA PILLAI PALIYIL THEKKUMMURIYAL VEEDU, ERUVELLIPRA MURI, THIRUVALLA VILLAGE PIN 689101 2 VISHNU P VIJAY, AGED 33 YEARS, S/O VIJAYAN, PADMALAYAM VEEDU, THIRUMOOLAPURAM PO, ERUVELLIPRA MURI, THIRUVLLA TALUK PIN 689101 - 3 ANIL KUMAR, AGED 46 YEARS, S/O KARUNAKARAN NAIR, ANIL NIVAS, MATHOOR PO, MATHOOR KARA, KOTHANALLOOR VILLAGE, VAIKOM, KOTTAYAM DISTRICT PIN 686141 THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 06.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C) NO. 527 OF 2023 2 ## **JUDGMENT** The original petition is filed challenging Exts.P12 and P13 orders passed in IA No.628/2019 and IA No.597/2015 in CMA No.5/2015 by the Court of the Subordinate Judge, Thiruvalla. The petitioner is the 1[st] respondent, the 1[st] respondent is the appellant and the respondents 2 and 3 are the respondents 2 and 3 before the court below. 2. The relevant antecedent facts leading to Exts.P12 and P13 orders are: (i) The petitioner is the 1[st] defendant in OS Nos.704/2014 and 705/2014 of the Court of the Munsiff, Thiruvalla (Trial Court). The suits are filed by the respondents 1 and 3 for declaration, recovery of possession and consequential injunction. - (ii) The petitioner resisted the suits by filing OP(C) NO. 527 OF 2023 3 separate written statements. - (iii) The 1[st] respondent filed IA Nos.3546/2014 and 3548/2014 in the two suits for orders of temporary injunction. But, the applications were dismissed. - (iv) Challenging the common order of dismissal in the two applications, the 1[st] respondent filed CMA Nos.5/2015 and 6/2015 before the Court of the Subordinate Judge, Thiruvalla (lower Appellate Court). - (v) The court below, by Ext.P8 common judgment, allowed the appeals. - (vi) Aggrieved by Ext.P8 common judgment, the petitioner filed OP(C) No.44/2017 before this Court. But, this Court, by Ext.P9 judgment, confirmed Ext.P8 common judgment. - (vii) The 1[st] respondent filed IA No.597/2015 OP(C) NO. 527 OF 2023 **==> picture [7 x 9] intentionally omitted <==** - (Ext.P10) under Rule 2A of Order 39 of the Code of Civil Procedure, alleging that the petitioner had violated the order of injunction. The petitioner resisted the application by filing Ext.P11 objection. - (viii) The petitioner filed IA No.628/2019 to dismiss IA No.597/2015. - (ix) The court below, by the impugned Exts.P12 and P13 orders held that it has the jurisdiction to consider IA No.597/2015 and dismissed I.A.No.628/2019. - (x) Exts.P12 and P13 orders are erroneous and unsustainable in law. Hence, the original petition. 3. Heard; Sri.Raju Joseph, the learned Counsel appearing for the petitioner and Sri.Haridas, the learned Counsel appearing for the respondents 1 and 3. 4. The short question is whether there is any OP(C) NO. 527 OF 2023 5 error in Exts.P12 and P13 orders. 5. On an evaluation of the pleadings and materials on record, it is evident that by Ext.P8 common judgment, the lower Appellate Court allowed the appeals and has granted an order of temporary injunction as prayed for in the two applications filed in the suits. 6. The 1[st] respondent had filed I.A.No.597/2015 in C.M.A.No.5/2015, alleging that the petitioner had violated the order of temporary injunction. Even though, the lower Appellate Court disposed of the appeals, by the impugned Ext.P13 order, the court below adjourned the application for further consideration by posting the application for evidence. 7. The question whether an appellate court has the jurisdiction to continue with a prosecution application after the appeal is disposed of, is no longer resintegra in the light of the categoric exposition of law by this Court in **Sudarsana Pillai R. and another vs.** OP(C) NO. 527 OF 2023 6 ## **K.Thulaseedharan Nair and others** [2017 (4) KHC ## 13], wherein a Division Bench has held as follows: “6. The defendants contended that only 'the Court granting the injunction or making the order, or any Court to which the suit or proceeding is transferred' can deal with an application under R.2A of Order XXXIX of the CPC. **We wish to emphasis that a procedural Statute like the CPC should not be construed in a literal sense without understanding the scheme of the Statute. The judgment in OP(C) No.232/2016 modifying the order passed in an application for temporary injunction should be deemed to have been made by the trial Court itself. Such deeming effect is given solely for the purpose of disposal of the application filed alleging violation of injunction under R.2A of Order XXXIX of the CPC. Expediency warrants that the Court where the main proceeding is pending (which in the instant case is the Court of the Munsiff, where the suit is pending) deals with an application of that nature.** Similarly the Appellate Court (if the appeal suit is pending on its file) shall deal with an application alleging violation of injunction in respect of an interim order passed in the appeal suit. **This** **will obviate the necessity to pursue two independent proceedings in two different forums parallely between the same parties in respect of the same subject matter of the lis”.** OP(C) NO. 527 OF 2023 7 8. A reading of the ratio decidendi leads me to the only conclusion that the lower Appellate Court cannot continue with the prosecution application because the appeals have been disposed of. 9. The lower Appellate Court ought to have relegated the 1[st] respondent to prosecute IA No.597/2015 before the Trial Court, where OS No.705/2014 is pending consideration. 10. Now, going by Ext.P13 order, obviously, the prosecution application and the suits will have to be tried by two forums which is diametrically opposite to the law laid down in **Sudarsana Pillai R.** (supra) . In the above conspectus, I hold that Exts.P12 and P13 orders are erroneous and unsustainable in law. Thus, I am inclined to exercise the power of superintendence under Article 227 of the Constitution of India and set aside the orders. OP(C) NO. 527 OF 2023 8 Resultantly, I allow the original petition as follows: - (i) Exts.P12 and P13 orders are set aside. - (ii) The Court of the Subordinate Judge, Thiruvalla is directed to transfer IA No.597/2015 filed in CMA No.5/2015, which application shall be renumbered by the Trial Court as an application filed in OS No.705/2014. - (iii) The Court of the Munsiff, Thiruvalla shall consider and dispose of the renumbered application, in accordance with law, as expeditiously as possible, after granting both sides an opportunity to substantiate their respective contentions. **Sd/-** ## **C.S.DIAS, JUDGE** rkc/06.03.23 OP(C) NO. 527 OF 2023 9 ## **APPENDIX OF OP(C) 527/2023** PETITIONER EXHIBITS |Exhibit P1|EXHIBIT P1 THE TRUE COPY OF THE PLAINT| |---|---| ||IN OS NO 704/2014 ON THE FILE OF MUNSIFF| ||COURT THIRUVALLA| |Exhibit P2|THE TRUE COPY OF THE PLAINT IN OS NO| ||705/2014 ON THE FILE OF MUNSIFF COURT| ||THIRUVALLA| |Exhibit P3|TRUE COPY OF THE WRITTEN STATEMENT IN OS| ||NO 705/14 ON THE FILE OF MUNSIFF COURT| ||THIRUVALLA| |Exhibit P4|TRUE COPY OF THE ORDER IN IA NO| ||3546/2014 IN OS NO 704/2014 AND IA NO| ||3548/2014 IN OS 705/2014 DATED 7.2.2015| ||ON THE FILE OF MUNSIFF COURT THIRUVALLA| |Exhibit P5|TRUE COPY OF THE CMA 5/15 OF THE COURT| ||OF SUBORDINATE JUDGE, THIRUVALLA| |Exhibit P6|TRUE COPY OF THE CMA 6/15 OF THE COURT| ||OF SUBORDINATE JUDGE, THIRUVALLA| |Exhibit P7|TRUE COPY OF THE COUNTER FILED IN CMA| ||5/2015 OF THE COURT OF SUBORDINATE| ||JUDGE, THIRUVALLA| |Exhibit P8|TRUE COPY ORDER DATED 26.11.2016 IN CMA| ||5/2015 AND CMA 6/15 OF THE COURT OF| ||SUBORDINATE JUDGE, THIRUVALLA| |Exhibit P9|TRUE COPY OF THE ORDER DATED 25.1.2017| ||IN OP© 44 OF 2017| |Exhibit P10|TRUE<br>COPY<br>OF<br>THE<br>INTERLOCUTORY| ||APPLICATION NO IA 597/2015 IN CMA 5/2015| |Exhibit P11|TRUE COPY OF THE COUNTER FILED ON| ||30.9.2015| OP(C) NO. 527 OF 2023 **==> picture [13 x 9] intentionally omitted <==** Exhibit P12 TRUE COPY OF THE ORDER DT 18.1.2023 IN IA NO 628/2019 IN IA NO 597/2015 IN CMA NO 5/2015 Exhibit P13 TRUE COPY OF THE ORDER DT 18.1.2023 IN IA NO 597/2015 IN CMA NO 5/2015