P.S. Alfred, P.S. Irene and P.S. Aswin (minors) through their father P.N. Surendran Nair v. P.J. Joseph

OP(C) NO. 1009 OF 2022 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 20[TH] DAY OF JULY 2022 / 29TH ASHADHA, 1944 OP(C) NO. 1009 OF 2022** **AGAINST THE ORDER/JUDGMENT IN IA 5/2022 IN OS 32/2022 OF ADDITIONAL MUNSIFF COURT ,KOTTAYAM** ## **PETITIONER/S:** 1 P.S. ALFRED AGED 16 YEARS (MINOR), AGED 16 YEARS, S/O P.N. SURENDRAN NAIR, RESIDING AT PURANGANAL HOUSE, EDAMULA KARA, KALLOORKULAM P.O., AKALAKUNNAM VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT, PIN. 686 503, THROUGH HIS FATHER AND THE NEXT FRIEND, P.N. SURENDRAN NAIR, RESIDING AT PURANGANAL HOUSE, EDAMULA KARA, KALLOORKULAM P.O., AKALAKUNNAM VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT, PIN. 686 503, PIN - 686503 2 P.S. IRENE AGED 14 YEARS (MINOR), AGED 14 YEARS, D/O P.N. SURENDRAN NAIR, RESIDING AT PURANGANAL HOUSE, EDAMULA KARA, KALLOORKULAM P.O., AKALAKUNNAM VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT, PIN. 686 503, THROUGH HER FATHER AND NEXT FRIEND, P.N. SURENDRAN NAIR, RESIDING AT PURANGANAL HOUSE, EDAMULA KARA, KALLOORKULAM P.O., AKALAKUNNAM VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT, PIN. 686 503, PIN - 686503 3 P.S. ASWIN(MINOR), AGED 11 YEARS, S/O P.N. SURENDRAN NAIR, RESIDING AT PURANGANAL HOUSE, EDAMULA KARA, KALLOORKULAM P.O., AKALAKUNNAM VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT, PIN. 686 503, THROUGH HIS FATHER AND NEXT FRIEND, P.N. SURENDRAN NAIR, RESIDING AT PURANGANAL HOUSE, EDAMULA KARA, KALLOORKULAM P.O., AKALAKUNNAM VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT, PIN. 686 503, PIN - 686503 OP(C) NO. 1009 OF 2022 2 BY ADVS. ALEX.M.SCARIA SARITHA THOMAS A.J.RIYAS ALEN J. CHERUVIL ## **RESPONDENT/S:** P.J. JOSEPH AGED 70, S/O JOSEPH, EDAPPALLIKUNNEL HOUSE, LAKKATTOOR KARA, KOOROPPADA VILLAGE, KOTTAYAM TALUK, KOTTAYAM, PIN - 686502 BY ADV ARJUN S. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 20.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C) NO. 1009 OF 2022 3 ## **JUDGMENT** The original petition is filed to set aside the order in I.A.No.5/2022 in O.S.No.32/2022 (Ext.P19) passed by the Court of the District Judge (Vacation), Kottayam while acting as the Vacation Court of the Munsiff, Kottayam. 2. The petitioners' case, in a nutshell, relevant for the determination of the original petition is that, they are the plaintiffs in the above suit, which is filed against the respondent, for a decree of permanent prohibitory injunction and to restrain the respondent from trespassing into the plaint schedule property. Along with the suit, the petitioners had filed Ext.P10 application for an order of temporary prohibitory injunction. The learned Munsiff had issued urgent notice on the application. The respondent appeared and filed Ext.P11 counter affidavit to Ext.P10 application. Thereafter, the respondent filed Ext.P13 application for OP(C) NO. 1009 OF 2022 4 an order of temporary mandatory injunction, against the petitioners from dismantling the gate; or in the alternative to restrain the petitioners and their people from closing the gate till the final disposal of the suit. Even though the respondent had filed Ext.P15 application, to advance a hearing of Ext.P13 application, the learned Munsiff did not take up the application. Then, the respondent filed Ext.P16 application to take up the suit in the Vacation Court. The Vacation Court (District Court, Kottayam) took up Ext.P13 application and without affording the petitioners an opportunity to file a counter affidavit to Ext.P13 application, allowed the application by Ext.P19 order. Ext.P19 is in the nature of a final order, which is impermissible in view of the law laid down by this Court in **Alex T. Mathew vs. State of Kerala and others** [2019 (5) KHC 28]. Hence, the original petition. 3. Heard; Sri.Alex M. Scaria, the learned counsel OP(C) NO. 1009 OF 2022 5 appearing for the petitioners and Sri.Arjun, the learned counsel appearing for the respondent. 4. The point is whether there is any illegality or irregularity in Ext.P19 order. 5. Undisputedly, the petitioners had filed Ext.P10 application for an order of temporary injunction. The Court below did not grant an ad-interim order of injunction, instead issued urgent notice to the respondent. The respondent appeared and filed Ext.P11 counter affidavit to Ext.P10 application. Then the respondent filed Ext.P13 application for an order of temporary mandatory injunction, as against the petitioners. The same was also not considered by the learned Munsiff. Then, the respondent filed Ext.P16 application before the Vacation Court for the purpose of considering Ext.P13 application. The Vacation Court, without granting the petitioners an opportunity to file objection to Ext.P13, has passed Ext.P19 order, the OP(C) NO. 1009 OF 2022 6 ## operative portion reads as follows: “In the result, this petition stands allowed in part, restraining the respondents/plaintiffs, from disturbing the peaceful enjoyment of the plaint item no.2 way by the petitioner/defendant until the suit is disposed off. Further the plaintiff/respondent shall not unlock the entry of the plaint item No.2 way, making any disturbance to the petitioner/defendant from using the said way. With the above observation, this petition will stand disposed of”. ## 6. In **Viswambharan vs. Damodaran Nair** [1988 ## (2) KLT 32], this Court in paragraph 2 held as follows: “2. xxxxx xxxxxx xxxxxxx xxxxx S.19(1) of the Civil Courts Act authorises the High Court to permit the Civil Courts under its control to adjourn from time to time for periods not exceeding in the aggregate sixty days in each year. During such adjustment, when judicial work cannot be transacted, in order to meet urgent situations, **under S.19(2), the High Court shall nominate a District Judge for each District, who shall have the power to make provisional orders on all urgent matters** and for such purpose, receive plaints, appeals, petitions and other matters which would ordinarily be presented before the District Court or such other Civil Courts subordinate OP(C) NO. 1009 OF 2022 7 to it which were so adjourned. Except on matters that could ordinarily be presented in the District Court, the order passed by the nominated District Judge could only be provisional on urgent matters and such orders could remain in force only until such matter has been heard and decided by the Court having jurisdiction on it being seized of the matter after the reopening. But regarding matters to be presented before the District Court itself, irrespective of the fact that the District Court is also adjourned and the District Judge is acting only as the nominated District Judge under S.19(2), he can pass such orders as could be passed by a Court having jurisdiction. **That means in other matters to** **be presented before other Courts which stand adjourned, his orders, except those that are provisional and on urgent matters, are without jurisdiction.** This provision is intended to obviate the statements that is likely during vacation on account of the impossibility of getting provisional orders on urgent matters. **An urgent – provisional order is a temporary order on an urgent matter provided for the present need or for the occasion as distinguished from a considered final order on the merits after hearing the parties or otherwise.** **When once such an order is passed the nominated District Judge cannot go on passing orders on the merits which will have to be passed by the regular Courts.** I do not mean to say that he cannot vacate the provisional order or pass other orders as the exigencies of the situation needs. **But all the orders could only be provisional on urgent** OP(C) NO. 1009 OF 2022 8 **matters leaving the normal court to pass regular orders on the merits. Anything beyond that is without jurisdiction and illegal because of the jurisdictional impairment on account of the circumspection to the powers.** (See Ramankutty vs. Ayissakunhi, 1987 (2) KLT 895). Even if both sides agree the nominal District Judge cannot exceed his powers under S.19(2) because consent of parties will not invest him with jurisdiction which he is not having”. 7. The above view has been reiterated by this Court in **Alex T. Mathew vs. State of Kerala and others** (supra). 8. In the light of the above exposition of law in the above cited judgments of this Court and after considering Ext.P19 order passed by the Vacation Court, I am of the view that the same exceeds the jurisdiction conferred on the Vacation Court. Therefore, Ext.P19 order cannot be sustained. 9. In the result, this original petition is allowed in the following manner: OP(C) NO. 1009 OF 2022 9 - (i) Ext.P19 order is set aside. - (ii) The Court of the Munsiff, Kottayam is directed to consider and dispose of Exts.P10 and P13 applications, in accordance with law, as expeditiously as possible, at any rate within a period of one month from the date of receipt of a certified copy of this judgment. - (iii) The parties shall maintain status quo as on today till a final order is passed on Exts.P10 and P13 orders. Sd/- ## **C.S.DIAS, JUDGE** rkc/20.07.2022 OP(C) NO. 1009 OF 2022 10 ## **APPENDIX OF OP(C) 1009/2022** PETITIONER EXHIBITS - Exhibit P1 TRUE COPY OF THE PLAINT IN O.S. NO. 32 OF 2022 DATED 20/01/2022 FILED BEFORE THE HON'BLE MUNSIFF'S COURT, KOTTAYAM. - Exhibit P2 TRUE COPY OF THE COMMISSION REPORT IN O.S. 32 OF 2022 DATED 27/01/2022 - Exhibit P3 TRUE COPY OF THE ROUGH SKETCH OF EXHIBIT P-2 COMMISSION REPORT. - Exhibit P4 TRUE COPY OF THE SALE DEED DATED 14/09/2010 BEARING NO. 1308/2010 OF KIDANGOOR SUB REGISTRY. - Exhibit P5 TRUE COPY OF THE SALE DEED DATED 17/08/2012 BEARING NO. 1362/2012 OF KIDANGOOR SUB REGISTRY - Exhibit P6 TRUE COPY OF THE SALE DEED DATED 20/01/2016 BEARING DOCUMENT NO. 91/2016 OF KIDANGOOR SUB REGISTRY. - Exhibit P7 TRUE COPY OF THE TAX RECEIPT DATED 04/02/2021 BEARING NO. KLO5030500903/2021 ISSUED BY THE AYARKUNNAM VILLAGE OFFICE - Exhibit P8 TRUE PHOTOGRAPH OF THE LOCATION WITH THE GATE SHOWING THE NATURE AND LIE OF THE ROAD - Exhibit P9 A TRUE COPY OF THE I.A NO 2/2022 IN O.S.32 OF 2022 DATED 20/01/2022. - Exhibit P10 TRUE COPY OF THE SAID I.A. NO. 1/2022 DATED 20/01/2022 FOR A TEMPORARY PROHIBITORY INJUNCTION . - Exhibit P11 TRUE COPY OF THE COUNTER AFFIDAVIT FILED OP(C) NO. 1009 OF 2022 11 BY THE RESPONDENT IN EXHIBIT P-10 - Exhibit P12 TRUE COPY OF I.A NO 4/2022 FILED BY THE RESPONDENT FOR POLICE ASSISTANCE. - Exhibit P13 TRUE COPY OF THE I.A. NO 5/2022 DATED 21/03/2022 FILED BY THE RESPONDENT SEEKING A TEMPORARY MANDATORY INJUNCTION AGAINST THE PETITIONERS - Exhibit P14 TRUE COPY OF THE LIST OF DOCUMENTS DATED 01/04/2022 FILED BY THE RESPONDENT IN EXHIBIT P-1 SUIT - Exhibit P15 TRUE COPY OF THE APPLICATION FOR ADVANCEMENT OF HEARING AS I.A. NO. 6/2022 DATED 01/04/2022 - Exhibit P16 TRUE COPY C.M.P (CIVIL) NO. 39/2022 FILED BY THE RESPONDENT BEFORE THE VACATION COURT AS CIVIL MISCELLANEOUS PETITION - Exhibit P17 TRUE COPY OF THE O.S. NO. 134/2022 DATED 15/03/2022 FILED BEFORE THE MUNSIFF'S COURT, KOTTAYAM - Exhibit P18 TRUE COPY OF THE INJUNCTION ORDER DATED 16/03/2022 IN O.S. NO. 134/2022 OF THE MUNSIFF'S COURT, KOTTAYAM. - Exhibit P19 TRUE COPY OF THE ORDER DATED 12/05/2022 IN IA. NO. 5/2022 IN O.S. NO. 32/2022. - Exhibit P20 TRUE COPY OF THE CASE STATUS REPORT FROM THE E-COURTS WEBSITE IN OS. NO. 39/2022 - Exhibit P21 TRUE COPY OF THE MEMORANDUM OF APPEAL DATED 06/06/2022 PREFERRED AGAINST EXHIBIT P-19 ORDER - Exhibit P22 TRUE COPY OF THE PRINT OUTS OF THE SCREEN SHOTS TAKEN FROM THE E-COURT SERVICES OP(C) NO. 1009 OF 2022 12 |Exhibit P23|TRUE COPY OF THE I.A. NO. 7/2022 IN O.S.| |---|---| ||NO. 32 OF 2022 DATED 23/03/2022.| |Exhibit P24|TRUE COPY OF THE SAID I.A. 8/2022 DATED| ||06/06/2022| |Exhibit P25|TRUE COPY OF THE CASE STATUS REPORT IN| ||OS. NO. 32/2022 OF THE 2ND ADDITIONAL| ||MUNSIFF COURT, KOTTAYAM| |Exhibit P26|TRUE COPY OF THE I.A. DATED 06/06/2022| ||UNDER ORDER 41, RULE 5 OF C.P.C FOR STAY| ||OF EXECUTION OF EXHIBIT P19 ORDER| |Exhibit P27|TRUE COPY OF THE DECISION IN| ||VISHWAMBHARAN V. DAMADORAN NAIR (1988| ||(2) KLT 32) DATED 13/06/1988| |Exhibit P28|TRUE COPY OF THE JUDGMENT DATED| ||06/06/1989 IN VISWANATHAN V. DISTRICT| ||JUDGE, REPORTED IN 1989 (2) KLT 33| |Exhibit P29|TRUE COPY OF THE JUDGMENT DATED| ||26/07/2001 IN KERALA BADMINTON| ||ASSOCIATION V. IDUKKI BADMINTON| ||ASSOCIATION REPORTED IN 2001 (3) KLT 125| |Exhibit P30|TRUE COPY OF THE JUDGMENT DATED| ||24/09/2019 IN ALEX T MATHEW V. STATE OF| ||KERALA & OTHERS REPORTED IN 2019 5 KHC| ||28| |Exhibit P31|TRUE COPY OF THE JUDGMENT DATED| ||11/09/2013 OF THIS HONOURABLE COURT IN| ||ELIZABETH JOHN V. ULLAS CHERIAN IN O.P| ||(FC) 2551/2013| |Exhibit P32|THE DECISION IN JOSEPH T. T. V. VALSAMMA| ||VARGHESE REPORTED IN 2022 (3) KHC 443| ||DATED 04/02/2022.|