Salahudeen and Seenath v. Noorjahan and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** ## **TUESDAY, THE 9[TH] DAY OF APRIL 2024 / 20TH CHAITHRA, 1946** **OP(C) NO. 2421 OF 2022** **AGAINST IN CMA NO.12/2020 AND CMS.NO.24/2020 OF THE SUB COURT,ATTINGAL ARISING OUT OF I.A.NO.4066/2019 IN OS NO.262 OF 2019 OF MUNSIFF COURT,ATTINGAL** ## **PETITIONERS/RESPONDENTS/PLAINTIFFS:** - **1 SALAHUDEEN AGED 66 YEARS S/O. SHAMSUDHEEN, SHANAVAS MANZIL, NEAR MOSQUE, ATTINGAL P.O., AVANAVANCHERY VILKLAGE, CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM DISTRICT, PIN - 695304** - **2 SEENATH AGED 56 YEARS W/O. SALAHUDEEN, SHANAVAS MANZIL, NEAR MOSQUE, ATTINGAL P.O., AVANAVANCHERY VILKLAGE, CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM DISTRICT, PIN - 695304 BY ADV R.GOPAN** **RESPONDENTS/APPELLANTS 1 &2 IN CMA. 12/2020 & APPELLANT IN CMA.NO.24/2020/DEFENDANTS 1&2 ADDL.3RD DEFENDANTS :** **1 NOORJAHAN AGED 58 YEARS W/O. LATE SHIBILY, MEDAYIL VEEDU, PARVATHYPURAM GRAMOM, ATTINGAL VILLAGE, CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM DISTRICT, PIN - 695304 2 SHAHINSH AGED 35 YEARS S/O. LATE SHIBILY PERAGAM DESOM, CHAVAKADU TALUK, PERAGAM P.O., MEDAYIL VEEDU, PARVATHYPURAM GRAMOM, ATTINGAL VILLAGE, CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM DISTRICT, PIN - 695304 3 SHIJIN AGED 42 YEARS S/O LATE SHIBILY MEDAYIL VEEDU, PARVATHYPURAM GRAMOM, ATTINGAL VILLAGE, CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM DISTRICT, PIN - 695304 BY ADVS. Gopikrishnan Nambiar M PRASANTH N.L. K.JOHN MATHAI(K/413/1984) JOSON MANAVALAN(J-526) KURYAN THOMAS(K/131/2003) PAULOSE C. ABRAHAM(MAH/58/2006) RAJA KANNAN(K/356/2008) R.CHETHAN KRISHNA(K/646/2013) SHABNA RAHIM(K/2471/2021) S.JAYANT(K/731/2015)** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 09.04.2024, ALONG WITH OP(C).2411/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **O.P.(C).Nos. 2411 & 2421 of 2022** ..2.. # **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN TUESDAY, THE 9[TH] DAY OF APRIL 2024 / 20TH CHAITHRA, 1946 OP(C) NO. 2411 OF 2022** **AGAINST THE ORDER DATED 25.06.2022 IN CMA NO.11 OF 2020 OF ASSISTANT SESSIONS COURT/ADDITIONAL SUB COURT,ATTINGAL PETITIONERS/RESPONDENTS/PLAINTIFFS:** **1 SALAHUDEEN AGED 66 YEARS S/O. SHAMSUDHEEN, SHANAVAS MANZIL, NEAR MOSQUE, ATTINGAL P.O., AVANAVANCHERY VILKLAGE, CHIRAYINKEEZHU TALUK, THIRUVANANATHAPURAM DISTRICT, PIN - 695304 2 SEENATH AGED 56 YEARS W/O. SALAHUDEEN, SHANAVAS MANZIL, NEAR MOSQUE, ATTINGAL P.O., AVANAVANCHERY VILKLAGE, CHIRAYINKEEZHU TALUK, THIRUVANANATHAPURAM DISTRICT, PIN - 695304 BY ADV R.GOPAN** ## **RESPONDENTS/APPELLANTS/DEFENDANTS:** **1 NOORJAHAN AGED 58 YEARS W/O. LATE SHIBILY, MEDAYILVEEDU, PARVATHYPURAMGRAMOM, ATTINGAL VILLAGE,CHIRAYINKEEZHU TALUK, THRIVANANATHAPURAM DISTRICT, PIN - 695304 2 SHAHINSHA AGED 35 YEARS S/O. LATE SHIBILY PERAGAMDESOM, CHAVAKADU TALUK, PERAGAM P.O., MEDAYILVEEDU, PARVATHYPURAMGRAMOM, ATTINGAL VILLAGE, CHIRAYINKEEZHU TALUK, THRIVANANATHAPURAM DISTRICT., PIN - 695304** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 09.04.2024, ALONG WITH OP(C).2421/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **O.P.(C).Nos. 2411 & 2421 of 2022** **==> picture [37 x 9] intentionally omitted <==** ## **J U D G M E N T** _**Dated this the 9[th] day of April, 2024**_ **The Original Petition first above referred stems from a judgment in the C.M.A, vacating an order of injunction; and the second, from the common judgment in two other C.M.As, vacating an order in the nature of a mandatory injunction to restore a bunk, which was allegedly demolished in violation of the order of injunction first above referred. A suit for injunction was preferred by the plaintiffs (petitioners herein) as O.S.No.262/2019 before the Munsiff's Court, Attingal. Along with the suit, the plaintiff moved an application for an** _**ad interim**_ **order of injunction, which was allowed, restraining the respondent/defendants (two in number then) from forcefully evicting the plaintiffs from the plaint schedule bunk and its** **O.P.(C).Nos. 2411 & 2421 of 2022** **==> picture [37 x 9] intentionally omitted <==** **premises and also from destructing the scheduled bunk. This order was confirmed after hearing the parties by the learned Munsiff. C.M.A.No.11/2020 was preferred by the defendants in the suit (respondents 1 & 2 in O.P.(C)No.2411/2022 herein), challenging the said order of injunction. The C.M.A. was allowed and the order of injunction was vacated, which judgment is under challenge in O.P. (C)No.2411/2022.** **2. In the meantime, the bunk was demolished and the plaintiffs filed another application for injunction directing the defendants to restore/reinstall the demolished bunk. I.A.No.4066/2019 for the said purpose was allowed by the learned Munsiff. Challenging the same, the defendants filed C.M.A.No.12/2020. A third person, who was impleaded as the additional 3[rd] defendant in the suit, preferred C.M.A.No.24/2020, challenging the mandatory injunction referred above. Both the C.M.As were heard together by the** **O.P.(C).Nos. 2411 & 2421 of 2022** **==> picture [37 x 9] intentionally omitted <==** **First Appellate Court and the same were allowed, with result, the direction to restore/reinstall the bunk was set aside. The aggrieved plaintiffs are the petitioners in both the original petitions.** **3. Heard Sri.R Gopan, learned counsel for the petitioners and Sri.R Chethan Krishna, for respondents 1 & 2 and Sri.Prasanth Krishna for 3[rd] respondent.** **4. Having heard the learned counsel appearing for the parties, this court finds little merit in the Original Petitions. The claim of the plaintiffs/petitioners is that, they are tenants conducting a bunk shop in the scheduled property on the strength of a consent deed executed by one Shibili, the husband of the first defendant and the father of the second. Apprehending forceful dispossession by defendants 1 and 2 (mother & son), the suit was filed. The defendants filed** **O.P.(C).Nos. 2411 & 2421 of 2022** **==> picture [37 x 9] intentionally omitted <==** **counter affidavit opposing the injunction sought for and contenting** _**inter alia**_ **that as per partition deed no.1479/2018 of the SRO, Attingal, the bunk is situated in the property allotted to the additional 3[rd] defendant, another son of the 1[st] defendant. A copy of the partition deed was produced. Nevertheless, the plaintiffs took no steps to implead the additional 3[rd] defendant. Thus the impugned order of injunction was passed without hearing the additional 3[rd] defendant, who is the owner of the scheduled property, where the bunk is situated. One of the reasons cited by the learned Sub Judge in the judgment in C.M.A.No.11/2020 to set aside the order of injunction is the above fact regarding non-joinder of necessary parties. In addition to the same, the learned Sub Judge found that the original Ext.A1 consent deed, was not produced by the plaintiffs. The landlord-tenant relationship was denied by the defendants in the suit. According to them, the plaintiffs were their employees. Failure to** **O.P.(C).Nos. 2411 & 2421 of 2022** **==> picture [37 x 9] intentionally omitted <==** **produce the original of Ext.A1, coupled with the absence of any document evidencing payment of rent persuaded the learned Sub Judge to disbelieve the plaintiffs and to probabilize the version of the defendants. Accordingly, the order of injunction was vacated by the judgment in O.P.(C)No.2411/2022.** **5. Coming to O.P.(C)No.2421/2022, a common judgment was rendered in C.M.A.Nos. 12 & 24 of 2020 by the learned Sub Judge. It was found that the violation of the order of injunction cannot be found, inasmuch as, the additional 3[rd] defendant (appellant in C.M.A.No.24/2020 was not a party to the order of injunction). The order was passed in violation of the principles of natural justice and the same is bad for non-joinder of necessary parties, were the further findings. Accordingly, C.M.appeals were allowed.** **6. In** _**Khetrabasi Biswal v. Ajaya Kumar Baral and Others**_ **[2004 (1) SCC 317], the Hon'ble Supreme** **O.P.(C).Nos. 2411 & 2421 of 2022** ..8.. **Court held that, the procedural as well as substantive law mandates that in the absence of a necessary party, the order passed is a nullity and does not have any binding effect. In** _**Poonam v. State of U.P and Others**_ **[2016 (2) SCC 779], the legal position was reiterated by holding that, an order which was passed behind the back of a person, affecting him adversely, is liable to be ignored as not binding on such party. The undisputed factual premise in the original petitions under consideration is that the additional 3[rd] defendant was not a party to the suit, when the order of injunction was passed. In the circumstances, the said order cannot bind the additional 3[rd] defendant. It has been brought to the notice of the plaintiffs that, the situs of the bunk is in the property allotted to the additional 3[rd] defendant as per the partition deed afore- referred. A contention to this effect was taken by defendants/respondents 1 & 2 and a copy of the partition deed produced, as well. However,** **O.P.(C).Nos. 2411 & 2421 of 2022** **==> picture [37 x 9] intentionally omitted <==** **the plaintiffs, for reasons best known to them, chose not to implead the real owner and proceeded with the matter only as against with defendants 1 & 2. In the circumstances, the order of injunction, insofar as, the additional 3[rd] defendant is concerned, is a nullity, going by** _**Khetrabasi Biswal**_ **(supra) and is liable to be ignored as not binding, going by** _**Poonam**_ **(supra). This court is, therefore, of the opinion that the order of injunction was rightly set aside by the learned Sub Judge, vide the judgment impugned in O.P(C)No.2411/2022.** **7. Once the order of injunction cannot be sustained, the further prayer of the plaintiffs to restore the bunk, which was allegedly demolished in violation of the order of injunction, also cannot be sustained. There is no tangible evidence on record to show that defendants 1 and 2 have demolished the bunk.** **O.P.(C).Nos. 2411 & 2421 of 2022** **==> picture [45 x 9] intentionally omitted <==** **8. In the light of the above discussion, the challenge raised in the original petitions fail and the O.Ps will therefore stand dismissed. However, it will be open for the petitioners/plaintiffs to seek fresh reliefs - interim or main – by bringing suitable amendment in redressal of their grievance, inasmuch as, the 3[rd] defendant has already been impleaded in the** **party array.** Sd/- **C. JAYACHANDRAN JUDGE** **TR** **O.P.(C).Nos. 2411 & 2421 of 2022** ..11.. ## **APPENDIX OF OP(C) 2411/2022** **PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF O.S. NO. 262/2019 FILED BY THE PETITIONERS BEFORE THE MUNSIFF'S COURT, ATTINGAL DATED 23.6.2019 Exhibit P2 TRUE COPY OF I.A. NO. 2193/2019 FILED BY THE PETITIONERS BEFORE THE MUNSIFF'S COURT, ATTINGAL DATED 22.6.2019 Exhibit P3 TRUE COPY OF AGREEMENT EXECUTED BY SHIBILI IN FAVOUR OF THE 2ND PETITIONER DATED 9.2.2016 Exhibit -P4 TRUE COPY OF OBJECTION/COUNTER AFFIDAVIT FILED BY THE 1ST DEFENDANT IN IA NO. 2193/2019 IN O.S. NO. 262/2019 BEFORE THE MUNSIFF COURT, ATTINGAL DATED 15.7.2019 Exhibit P5 TRUE COPY OF COMMISSION REPORT IN I.A. NO. 3494/2019 IN O.S. NO. 262/2019 FILED BY THE ADVOCATE COMMISSIONER BEFORE THE MUNSIFF COURT, ATTINGAL DATED 23.11.2019 Exhibit P6 TRUE COPY OF ORDER DATED 13.1.2020 IN I.A. NO. 2193/2019 IN O.S. NO. 262/2019 PASSED BY THE MUNSIFF COURT, ATTINGAL Exhibit P7 TRUE COPY OF CMA NO. 11/2020 FILED BY THE RESPONDENTS BEFORE THE SUB COURT, ATTINGAL DATED 12.2.2020 Exhibit P8 TRUE COPY OF JUDGMENT DATED 25.6.2022 IN C.M.A. NO. 11/2020 OF THE SUB COURT, ATTINGAL** **O.P.(C).Nos. 2411 & 2421 of 2022** ..12.. ## **APPENDIX OF OP(C) 2421/2022** - **PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF O.S. NO. 262/2019 OF THE SUB COURT, ATTINGAL DATED 23.6.2019 FILED BY THE PETITIONERS BEFORE THE MUNSIFF COURT, ATTINGAL** - **Exhibit P2 TRUE COPY OF I.A. NO. 2193/2019 IN O.S. NO. 262/2019 FILED BY THE PETITIONERS BEFORE THE MUNSIFF'S COURT, ATTINGAL DATED 22.6.2019** - **Exhibit P3 TRUE COPY OF COUNTER AFFIDAVIT FILED BY THE 1ST DEFENDANT IN I.A. NO. 2193/2019 IN O.S. NO. 262/2019 BEFORE THE MUNSIFF COURT, ATTINGAL.** - **Exhibit P4 TRUE COPY OF ORDER IN I.A. NO. 2193/2019 IN O.S. NO. 262/2019 OF THE MUNSIFF COURT, ATTINGAL DATED 13.1.2020** - **Exhibit P5 TRUE COPY OF I.A. NO. 4066/2019 IN O.S. NO. 262/2019 DATED 19.12.2019 FILED BY THE PETITIONERS BEFORE THE MUNSIFF'S COURT, ATTINGAL** - **Exhibit P6 TRUE COPY OF COUNTER AFFIDAVIT FILED BY THE 2ND DEFENDANT/2ND COUNTER PETITIONER IN I.A. NO. 4066/2019 IN O.S. NO. 262/2019 DATED 4.1.2020 BEFORE THE MUNSIFF'S COURT, ATTINGAL** - **Exhibit P7 TRUE COPY OF COMMISSION REPORT IN I.A. NO. 3494/2019 IN O.S. NO. 262/2019 FILED BY THE ADVOCATE COMMISSIONER BEFORE THE MUNSIFF COURT, ATTINGAL DATED 23.11.2019** - **Exhibit P8 TRUE COPY OF ORDER IN I.A. NO. 4066/2019 IN O.S. NO. 262/2019 DATED 13.1.2020 PASSED BY THE MUNSIFF COURT, ATTINGAL** - **Exhibit P9 TRUE COPY OF CMA NO. 12/2020 FILED BY THE RESPONDENTS BEFORE THE SUB COURT ATTINGAL** - **Exhibit10 TRUE COPY OF CMA NO. 24/2020 FILED BY ADDL. 3RD DEFENDANT BEFORE THE SUB COURT, ATTINGAL DATED 19.3.2020** - **Exhibit P11 TRUE COPY OF COMMON JUDGMENT IN CMA NO. 12/2020 & CMA NO.24/2020 PASSED BY THE** **O.P.(C).Nos. 2411 & 2421 of 2022** **==> picture [45 x 9] intentionally omitted <==** **COURT OF THE SUB JUDGE, ATTINGAL DATED 25.6.2022** **RESPONDENT ANNEXURES** **Annexure R2 (a) True copy of the Partition deed document No. 1479/2018 dated 16.07.2018**