POABS Enterprises Pvt. Ltd. v. Kumar

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 15TH DAY OF FEBRUARY 2018 / 26TH MAGHA, 1939** **OP(C).No. 319 of 2018** **-----------------OS. NO.15/2018 of MUNSIFF COURT, PEERMADE.** **....** **PETITIONERS/PLAINTIFFS: -----------------------** - **1 POABS ENTERPRISES PVT. LTD., KUTTOOR P.O., THIRUVALLA, PATHANAMTHITTA DISTRICT, REPRESENTED BY ITS MANAGING DIRECTOR, JOSEPH JACOB, AGED 37 YEARS, S/O.P.A. JACOB, PANACHAYIL HOUSE, WEST OTHARA, KUTTOOR P.O., THIRUVALLA.** - **2 SUNNY PETER, MANAGER, M/S.POABS ENTERPRISES PVT. LTD., NELLIMALA (NELLIKAI) ESTATE, PERIYAR VILLAGE, VANDIPERIYAR P.O.** **BY ADV.SRI.N.JAMES KOSHY.** ## **RESPONDENT/DEFENDANT:** ## **---------------------** **KUMAR, S/O.VELUCHAMI, AGED 45 YEARS, KAKKIKAVALA JUNCTION, VANDIPERIYAR P.O., PIN - 685 533, PERIYAR VILLAGE, PEERMADE TALUK.** **BY ADV. SRI.BIJU .C. ABRAHAM** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 15-02-2018, ALONG WITH OP(C) NO.349 OF 2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **rs.** **OP(C).No. 319 of 2018 (O)** **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1. TRUE COPY OF THE CERTIFICATE OF SALE OF IMMOVABLE PROPERTY NO.KR/KTM/269/REC/ENF.1(6) DATED 23.06.2008 ISSUED BY EMPLOYEES PROVIDENT FUND ORGANIZATION, KOTTAYAM IN FAVOUR OF THE 1ST PETITIONER. EXHIBIT P2. TRUE COPY OF THE LAND TAX RECEIPT DATED 29.03.2017 ISSUED TO THE 1ST PETITIONER BY THE VILLAGE OFFICER, VANDIPERIYAR. EXHIBIT P3. TRUE COPY OF THE PLAINT IN O.S.NO.15/2018 FILED BY THE PETITIONERS BEFORE THE MUNSIFF'S COURT, PEERMADE. EXHIBIT P4. TRUE COPY OF THE IA NO.31/2018 IN O.S.NO.15/2018 DATED 10.01.2018 FILED BY THE PETITIONERS BEFORE THE MUNSIFF'S COURT, PEERMADE. EXHIBIT P5. TRUE COPY OF THE IA NO.32/2018 IN O.S.NO.15/2018 FILED BY THE PETITIONERS BEFORE THE MUNSIFF'S COURT, PEERMADE. EXHIBIT P6. TRUE COPY OF THE INJUNCTION ORDER DATED 12.01.2018 PASSED BY THE MUNSIFF'S COURT, PEERMADE IA NO.32/2018 IN O.S.NO.15/2018. EXHIBIT P7. TRUE COPY OF THE COMMISSION REPORT DATED 19.01.2018 SUBMITTED BEFORE THE MUNSIFF'S COURT, PEERMADE IN IA NO.31/2018 IN O.S.NO.15/2018. EXHIBIT P8. TRUE COPY OF THE PETITION DATED 13.01.2018 SUBMITTED PETITIONERS BEFORE THE SUB INSPECTOR OF POLICE, VANDIPERIYAR. EXHIBIT P9. TRUE COPY OF THE PETITION DATED 27.01.2018 SUBMITTED BY THE PETITIONERS BEFORE THE DISTRICT POLICE SUPERINTENDENT, IDUKKI WITH ACKNOWLEDGMENT RECEIPT DATED 27.01.2018. EXHIBIT P10. TRUE COPY OF THE I.A.NO.77/2018 IN O.S.NO.15/2018 DATED 19.01.2018 FILED BY THE PETITIONERS BEFORE THE MUNSIFF'S COURT, PEERMADE. EXHIBIT P11. TRUE COPY OF THE I.A.NO.76/2018 IN O.S.NO.15/2018 DATED 19.01.2018 FILED BY THE PETITIONERS BEFORE THE MUNSIFF'S COURT, PEERMADE. EXHIBIT P12. TRUE COPY OF THE I.A.NO.78/2018 IN O.S.NO.15/2018 DATED 19.01.2018 FILED BY THE PETITIONERS BEFORE THE MUNSIFF'S COURT, PEERMADE. EXHIBIT P13. TRUE COPY OF THE PHOTOGRAPH OF THE BUILDING. RESPONDENT'S EXHIBITS: NIL.** **//TRUE COPY//** **P.S. TO JUDGE** **rs.** ## **ALEXANDER THOMAS, J** . ------------------------------------------------- O.P.(C) Nos. 319 and 349 of 2018 ------------------------------------------------Dated this the 15[th] day of February, 2018 ## **JUDGMENT** Since the facts are broadly similar, these two Original Petitions (Civil) are heard and disposed of on the basis of this common judgment. ## **O.P.(C) No. 319 of 2018** The prayers in this Original Petition (Civil) filed under the enabling provisions of Article 227 of the Constitution of India are as follows : “i. To direct the Munsiff's Court, Peermade to consider and dispose Exts.P10, P11 and P12 applications forthwith, ii. To direct the Munsiff's Court, Peermade to provide police assistance to enforce Ext.P6 injunction order and to stop the construction of the building in the plaint schedule property forthwith and iii. Grant such other reliefs that are found necessary by this Hon'ble Court in the facts and circumstances of the case.” 2. Heard Sri.N. James Koshy, learned counsel appearing for the petitioners/plaintiffs and Sri. Biju C. Abraham, learned counsel appearing for the respondents/defendants. 3. Petitioners have filed Ext.P3 O.S. No. 15/2018 before the Munsiff's Court, Peermade. Along with the Suit, the petitioners had OP(C) : 319 & 349 of 2018 -:2:- also filed Ext.P5 I.A. No.32/2018 in the above Suit, seeking grant of temporary injunction so as to restrain the respondents/defendants from continuing the construction in the plaint schedule property, committing waste in the plaint schedule property etc. The learned Munsiff as per Ext.P6 order dated 12.01.2018 granted an ad interim injunction order as sought for by the plaintiffs in I.A. No.32/2018. Ext.P7 is the Commission Report dated 19.01.2018. According to the petitioners, despite grant of Ext.P6 injunction order, the respondent and his men are blatantly violating the said ad interim injunction order and proceeding with the construction. Thereupon the petitioners have accordingly filed Exts.P10, P11 and P12 applications. Ext.P10 application is filed seeking an order of attachment of the property of the defendant in view of the alleged violation of the ad interim injunction order. The prayer in Ext.P11 application is for appointment of Advocate Commissioner to ascertain whether the respondent herein has conducted any further construction after the interim injunction order. In Ext.P12 application the petitioners have sought for police aid for enforcement of the above said ad interim injunction order. 4. This Court has admitted the OP(C) on 05.02.2018 and has also directed the Munsiff's Court, Peermade to furnish a report as to the present stage of Ext.P6 order dated 12.01.2018 and as to whether OP(C) : 319 & 349 of 2018 -:3:- Exts.P10 to P12 applications are still pending consideration and as to the time required for disposal of the same. It is also ordered that in the mean while the respondent will maintain _status quo_ in order to preserve the subject matter of the _lis_ . 5. Now the respondent has entered appearance through counsel and has also filed a counter affidavit. One of the main objections taken by the respondent is that he is not the owner of the property concerned and he is only entrusted with the supervision of the construction by the owner of the property concerned. Further that the mother of the respondent has obtained an interim injunction order in a Suit filed by her wherein the defendant therein is the erstwhile owner of the plaint schedule property in the present suit. 6. Petitioners have also various contentions in support of their pleas. Having heard both sides, this Court is the view that it is for the parties to urge all their respective contentions on merits before the trial court concerned and it is not proper and right for this Court to make any findings so as to resolve the correctness of any of these rival contentions. 7. As regards the prayer made by the petitioners seeking police aid (Ext.P12 I.A.) for a direction from the trial seeking enforcement of OP(C) : 319 & 349 of 2018 -:4:- the ad interim injunction order, it is to be borne in mind that Ext.P6 order dated 12.01.2018 is only an ad interim injunction order. The court below has also mentioned in its report that Ext.P5 I.A. No.32/2018 is now posted for objections of the respondent herein and that the trial court will make endeavours to ensure disposal of Ext.P5 application within one month. 8. In a decision reported in **Kochupennu Ambujakshi v. Veluthakunju Vasu Channar** [AIR 1993 KERALA 62] this Court has considered the question that whether the assistance of the police can be requested for to enforce an ad interim order of injunction. It has been held by this Court that it is imperative that police should not be allowed to intervene or interfere at this stage in matters of possession which entail civil disputes, especially when the matter is one at the interlocutory stage of proceedings and this Court shall not interfere in the matter of an interim ex parte order with a direction for police aid. Only a final order passed under Order XXXIX Rule 1 or 2 of the Code of Civil Procedure can be enforced with the assistance of the police. Here it is the admitted case of both the parties that the order passed in Ext.P6 is only an ad interim injunction order. Therefore, at this stage it is premature to seek the OP(C) : 319 & 349 of 2018 -:5:- aid of police to enforce the said ad interim injunction order. The proper course could be to ensure that the trial court passes a final order on Ext.P5 application on the prayer of the plaintiff for temporary injunction after hearing both sides and the trial court will have to decide after hearing both sides as to whether the injunction could be granted or it is to be refused etc. It is only in case the trial court passes final orders granting such temporary injunction that it will be proper for the Court to seek the aid of police to enforce such order of injunction. Accordingly, it is ordered in the interest of justice that the trial court concerned shall take all possible endeavours to ensure earlier disposal of Ext.P5 application, after hearing both sides, without much delay. 9. Both sides submit that that this Court may direct the trial court to pass final order on Ext.P5 application within a period of 1 to 2 weeks. Accordingly, it is ordered that the trial court shall pass orders on Ext.P5 I.A., within two weeks from the date of production of a certified copy of this judgment. The trial court will consider the submission on either side and then should decide whether the temporary injunction as sought for is to be granted or whether it is to be refused. However, it is made clear that until orders are passed by OP(C) : 319 & 349 of 2018 -:6:- the Munsiff's Court, Peermade on Ext.P5 application, the respondent herein will be under the obligation to obey Ext.P6 ad interim injunction order so long as it is current. Needless to say that the remedy of a party who alleges that the defendant has violated the ad interim injunction order is to seek attachment of the property as envisaged in the provisions contained in Rule 2A of Order XXXIX CPC. All contentions of the parties are left open. The petitioners will produce a certified copy of this judgment before the trial court for necessary information. With these observations and directions, the above Original Petition (Civil) will stand finally disposed of. ## **OP(C) No.349 of 2018** 10. In this case the plaintiffs are the same as in OP(C) No.319 of 2018 and the defendant is a different person. The facts of the case are broadly similar. The directions issued by this Court in O.P.(C) No.319 of 2018 shall govern this case also. Accordingly, it is ordered that the trial court will take up Ext.P5 I.A. No.30/2018 in O.S. No.14/2018, without much delay, and should pass orders thereon after hearing both sides within a period of two weeks from the date of production of a certified copy of this judgment. The trial court, after hearing OP(C) : 319 & 349 of 2018 -:7:- both sides, should take a considered decision as to whether or not the temporary injunction sought for in the application is to be granted or refused. Until orders are passed on Ext.P5 application, the defendant will be under the obligation to obey Ext.P6 ad interim injunction order dated 12.01.2018 so long as it is current. The petitioners will produce a certified copy of this judgment before the trial court for necessary information. With these observations and directions, the above Original Petition (Civil) will stand finally disposed of. Sd/- **ALEXANDER THOMAS, JUDGE** ttb