P.S. Francis @ Sunny v. Saleena Rahim and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ASHOK MENON** ## **WEDNESDAY,THE 30TH DAY OF JANUARY 2019 / 10TH MAGHA, 1940** ## **OP(C).No. 1941 of 2017** **AGAINST THE ORDER/JUDGMENT IN IA NO.423/2017 AND IA NO.389/2017 IN OS 9/2016 of SUB COURT, PALA DATED 15-06-2017** ## **PETITIONER/S:/PLAINTIFF** **P.S.FRANCIS @ SUNNY AGED 58, S/O. SCARIA, NELLUVELIL HOUSE,THALAPPALAM, PLASSANAL P.O., KOTTAYAM 686 579.** **BY ADV. SRI.RAJEEV V.KURUP** ## **RESPONDENT/S:/DEFENDANTS** **1 SALEENA RAHIM, VALIYA VEETTIL HOUSE, NADAKKAL, ERATTUPETTA, KOTTAYAM - 686 184.** **2 V.K. ABDUL RAHIM S/O. KOCHU MUHAMMED, VALIYA VEETTIL HOUSE, NADAKKAL, ERATTUPETTA,KOTTAYAM - 686 124. 3 ADVOCATE O.V JOSEPH S/O. VARGHESE, OTTALANKAL HOUSE, ARUVITHARA, ERATTUPETTA,KOTTAYAM - 686 122. 4 P.C. ABDUL LATHIF PUTHUPARAMBIL, ERATTUPETTA, MEENACHIL, KOTTAYAM - 686 122.** **BY ADVS. R1 & R2 SRI.BABY THOMAS SMT.RAHANA JOSE SRI.JOJO T.ZACHARIAS R3 & R4 SRI.SHAJI THOMAS** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 24.10.2018, THE COURT ON 30.01.2019 PASSED THE FOLLOWING:** OPC 1941/17 -2- ## **ASHOK MENON, J.** ## **-----------------------------------OP(C) No.1941 of 2017** ------------------------------------Dated this the 30[th] day of January, 2019 ## **J U D G M E N T** The plaintiff in OS No.9/2016 on the file of Sub Court, Pala, is before this Court challenging the orders of the trial court in IA Nos.423/2017 and 389/2017,in that suit. 2. The facts in brief are thus:- The petitioner and the first respondent were partners in a firm engaged in supply of liquid oxygen. The second respondent is the husband of the first respondent. The partnership was agreed to be dissolved as per Ext.P2 dissolution agreement and respondents 3 and 4 were appointed as mediators to implement the terms of the dissolution agreement entered into between the partners. It is alleged that the respondents OPC 1941/17 -3- colluded and the mediators backed out mid-way. The petitioner was therefore constrained to move the Sub Court with the suit for appointment of a receiver and seeking compliance of the dissolution agreement. Ext.P1 is the plaint. _Pendente lite,_ the plaintiff sought a temporary injunction in IA No.49/2016 to restrain the respondents from moving the oxygen tanks belonging to the firm and placed in four different hospitals, and obtained an interim order of injunction on 17.02.2016 vide Ext.P3. It is alleged that the respondents violated the said order of injunction and the plaintiff filed IA No.104/2017 (Ext.P4) for action against the respondents under Order XXXIX Rule 2A of the Code of Civil Procedure. In Ext.P5 counter, which is filed to Ext.P4 application, it is admitted that the oxygen tanks were removed. 3. Pending application for prosecution for violation of the injunction order, the suit was taken ## OPC 1941/17 -4- up for trial. The plaintiff filed IA No.423/2017 (Ext.P6) praying that separate proceedings may be initiated in IA No.104/2017 for prosecuting the respondents under Order XXXIX Rule 2A CPC. 4. Vide Ext.P7 order, the learned Sub Judge disagreed with the request of the plaintiff to proceed with IA No.104/2017 separately and observed that the joint trial of the suit and IA No.104/2017 is not going to affect the proceedings in any manner and therefore, dismissed IA No.423/2017. 5. The plaintiff had also filed IA No.389/2017 (Ext.P8) seeking permission to let in evidence on the side of the plaintiff/petitioner by examination of witnesses and also directing the witnesses to produce certain documents relevant to substantiate the case of the plaintiff regarding violation of the injunction order. Vide Ext.P9, IA No.389/2017 was also dismissed by the learned Sub Judge. The learned Sub Judge has in OPC 1941/17 -5- the impugned order, held that the question whether any gas tank has been installed or gas has been supplied to the hospitals has no relevance to the present suit, which is only for enforcing the terms of the Ext.P2 contract of dissolution. It is also observed that on examination of PW1 and marking Ext.A1 to A9, evidence with regard to transaction between the parties dissolution of partnership has been adduced, and therefore, issuance of summons to nine witnesses for producing numerous documents is not essential for the trial of the suit and hence it was dismissed. 6. Exts.P7 and P9 orders are impugned seeking interference of this Court under Article 227 of the Constitution of India. 7. Heard both sides. 8. The learned counsel for the petitioner relies on two decisions of this Court in _**2017 (4) KLT 386**_ **[** _**Madavana Masjidul Badariya Jamaath & Anr. v.**_ OPC 1941/17 -6- _**Seethi K.A. & Ors.**_ **]** and _**2012 (3) KLJ 386 [Koshy P.Cherian & Anr. v. T.R.Ramachandran & Ors.]**_ in support of his argument that the trial court should make an attempt to take up applications under Order XXXIX Rule 2A of the CPC before disposal of the suit, as otherwise, there would be no point in issuing interlocutory injunction, after making out the _prima facie_ case. The parties should not therefore, be allowed to violate the order of the court. In the case of _**Koshy P.Cherian (supra)**_ , the learned Single Judge relying on the decision of the Allahabad High Court in _**AIR 1998 Allahabad 228 [Gyan Chand Jain v. XIIIth Addl. Dist. And Sessions Judge, Agra]**_ , observed that the proceedings under Order XXXIX Rule 2A of the CPC initiated on violation of the injunction order is in the nature of a criminal proceedings and the violator is liable to be detained in prison, if found that he had committed breach of the injunction order and OPC 1941/17 -7- proceedings are decided on the principles of criminal law with regard to appreciation of evidence. A common judgment and order deciding the main suit and the application under Order XXXIX Rule 2A CPC is not proper, and therefore, it was directed that the suit and the interlocutory application be decided separately. In the later decision of the learned Single Judge in _**Madavana Masjidul Badariya Jamaath**_ (Supra), the decision in _**Koshy P.Cherian**_ (supra) was followed and the prayer of the petitioner therein to try the suit along with the application filed by the plaintiff under Order XXXIX Rule 2A CPC to prosecute the defendants for violation of the order, was dismissed. 9. In the instant case, the learned Sub Judge has not held that the trial of the suit as well as the application for prosecution for violation of injunction order would be tried together on the basis of the same OPC 1941/17 -8- evidence. What is ordered is only a joint trial. Neither of the two decisions relied upon by the learned counsel for the petitioner interdicts a joint trial of the suit with the application for violation of injunction. It is true that the learned Sub Judge shall enter into separate findings in the application for violation under Order XXXIX Rule 2A of the CPC as well as in the suit. The fact that the suit may be ultimately dismissed on the basis of the evidence adduced in the suit shall not have any impact on the application for violation of injunction because both are two independent proceedings and evidence has to be appreciated separately. 10. Regarding examination of nine witnesses in the suit to prove the contract of the partnership with their clients may not be material for deciding the issue involved in the suit, and rightly, the learned OPC 1941/17 -9- Sub Judge disallowed that. I find no illegality in that also. I find no reason to interfere with the impugned orders and I assume that the learned Sub Judge has understood the precedents cited above in the right perspective and would apply the principles in those decisions appropriately. With these observations, the OPC is dismissed. No costs. **Sd/-** **ASHOK MENON JUDGE** OPC 1941/17 -10- ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 COPY OF THE PLAINT IN O.S.9/2016 OF SUB COURT PALA. EXHIBIT P2 COPY OF AGREEMENT DATED 11.09.2014. EXHIBIT P3 COPY OF THE ORDER DATED 17.02.2016 IN I.A. 49/2016 IN O.S. 9/2016 OF SUB COURT, PALA. EXHIBIT P4 COPY OF I.A. 104/2017 IN O.S. 9/2016 DATED 02.02.2017. EXHIBIT P5 COPY OF THE OBJECTION DATED 14.03.2017. EXHIBIT P6 COPY I.A. 423/2017 IN O.S. 9/2012 DATED 03.06.2017 OF SUB COURT PALA. EXHIBIT P7 COPY OF THE ORDER DATED 15.06.2017 IN I.A.423/2017 IN O.S. 9/2016 OF THE SUB COURT PALA. EXHIBIT P8 COPY I.A. 389/2017 IN O.S. 9/2012 DATED 23.05.2017 OF THE SUB COURT PALA. EXHIBIT P9 COPY OF THE ORDER DATED 15.06.2017 IN IA 389/2017 IN O.S. 9/2016 OF THE SUB COURT, PALA.** [True Copy] jg