Shaima Shanavas v. Ahammed Kabeer & Majida Beevi

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Harilal
Annie John
Judgment Date: 2019-09-25
Court Decision / Holding: OP(FC) No. 551/2019 dismissed.
Final Disposition: OP(FC) No. 551/2019 dismissed.

Parties to the Case

Appellants / Petitioners

Shaima Shanavas

Respondents

Ahammed Kabeer
Majida Beevi

Legal Representation & Advocates

Counsels for Petitioners

• Sri. B. Mohanlal

Counsels for Respondents

• Sri. Liju M.P

Case Synopsis & Summary

Shaima Shanavas filed OP (FC) 551/2019 challenging the Family Court, Kottarakkara’s order transferring the case from the Munsiff’s Court and restoring status quo ante in a property dispute. The respondents had filed O.S. No. 289/2016 seeking a permanent prohibitory injunction to restrain trespass into the plaint schedule property and the building and to protect peaceful possession until further orders. An interim injunction was granted by IA 1223/2016, and later a counter-application (IA 2059/2016) sought to prosecute a third defendant under Order XXXIX Rule 2A for violating the injunction. The Family Court attached the petitioner’s property via Ext. P3 to enforce the injunction. The matter then escalated as the Munsiff’s Court’s jurisdiction to try the original suit was questioned; Tr.P.C. 18/2018 led to transfer to the Family Court under Section 7(1) of the Family Court Act, and subsequent renumbering of IA 1040/2018 in OP 453/2018, which was re-numbered as IA 1040/2017. The petitioner argued the injunction order was a nullity because the issuing court lacked jurisdiction and that she lived in the building before suit, with the property purchased in her husband’s name using her funds. The High Court held that even if the Munsiff’s Court lacked jurisdiction, the injunction order remained binding on her until set aside on appeal, and the respondents were entitled to restoration of status quo ante. The court refused to interfere and dismissed the petition, citing Ravi S. Naik and Bagasarwalla to underline the binding effect of court orders.

Provisions of Law Cited

Order XXXIX Rule 2A(2) of CPCOrder XXXIX Rule 2A of CPCSection 7(1) of the Family Court Act

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that the injunction order was issued by a court that had no jurisdiction to try the original suit, rendering the order a nullity. She asserts residential occupancy in the building since before the suit and that the property was purchased in her husband’s name using her funds, thus challenging the binding effect of the injunctive order. Her remedy, she argues, lies in review or appeal, not disobedience of the order. She also questions the transfer of the original suit to the Family Court under Section 7(1) of the Family Court Act and seeks to avoid enforcement measures attached to the injunction.

Contentions of Respondents

The respondents argue that the injunction order attached the property and bound the petitioner until properly set aside by appellate process. They maintain the violation on 16.06.2016 justifies restoration of status quo ante and reiterate that disobedience of court orders cannot be excused by alleged lack of jurisdiction in the issuing court. They emphasize that transfer and transfer-petition procedures did not nullify the Order XXIX Rule 2A injunction and that the remedy is to challenge the order through appropriate legal channels.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Ravi S. Naik v. Union of India	1994 Suppl. (2) SCC 641	Positive	Cited to support the proposition that violations of court orders cannot be excused on the ground of lack of jurisdiction; remedy lies in review or appeal.
T.M. Bagasarwalla v. H.R. Industries	1997 KHC 506	Positive	Cited alongside Ravi S. Naik to reinforce the principle that disobedience of an order cannot be justified by jurisdictional challenges; remedy is appellate.

Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MRS. JUSTICE ANNIE JOHN WEDNESDAY, THE 25TH DAY OF SEPTEMBER 2019 / 3RD ASWINA, 1941 ## OP (FC).No.551 OF 2019 AGAINST THE ORDER IN I.A.NO. 1040/2018 IN OP 453/2018 DATED 09-08-2019 OF FAMILY COURT, KOTTARAKKARA ## PETITIONER/S: SHAIMA SHANAVAS, AGED 31 YEARS D/O. ABDUL AZEEZ, THOTTUMKARA PUTHEN VEEDU, CHERUKULAM P.O., ANCHAL, KOLLAM. (FROM EDAYILA NETTAYATHU VEEDU, MATHURAPPA, THADICAD P.O., ANCHAL, KOLLAM) BY ADV. SRI.B.MOHANLAL ## RESPONDENT/S: 1 AHAMMAD KABEER, S/O. MUHAMMED ALI, THOTTUMKARA PUTHEN VEEDU, CHERUKULAM P.O., ANCHAL, KOLLAM-691 306. 2 SMT. MAJIDA BEEVI, W/O.AHAMMED KABEER, THOTTUMKARA PUTHEN VEEDU, CHERUKULAM P.O., ANCHAL, KOLLAM-691 306. R1-2 BY ADV. SRI.LIJU. M.P THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 25.09.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: O.P.(FC) No. 551/2019 : 2 : ## JUDGMENT ## K. HARILAL,J. The petitioner is the respondent in I.A. No. 1040 of 2018 in O.P. No. 453 of 2018 of the Family Court, Kottarakkara. The aforesaid IA was filed by the respondents herein against the petitioner under Order XXXIX Rule 2A(2) of CPC seeking restoration of the status quo ante. According to the respondents, they have filed O.S. No. 289 of 2016 for permanent prohibitory injunction restraining the petitioner herein from trespassing into the plaint schedule property and the building and committing any any kind of waste in it and interfering with the peaceful possession and enjoyment of the property until further orders. Along with the said OP, they have preferred I.A.No. 1223 of 2016 seeking a temporary order of injunction and the same was allowed as prayed for. While the said order was in force, the petitioner herein trespassed into the plaint schedule property and the building and committed waste on 16.06.2016, in violation of the said order of injunction. Aggrieved by the conduct on the part of the petitioner, the respondents preferred I.A.No. 2059 of 2016 in the said OS under Order XXXIX O.P.(FC) No. 551/2019 : 3 : Rule 2A of CPC to prosecute the third defendant, who violated the order of injunction passed in I.A.No. 1223 of 2016. After considering the said objection filed by the petitioner herein, the Family Court passed Ext.P3 order attaching the property of the petitioner for the purpose of injunction order. Subsequently, the respondents have preferred I.A.No. 3108 of 2017 before the Munsiff's Court, Kottarakkara under Order XXXIX Rule 2A for restoring the status quo ante by evicting the third respondent from the residence of the respondents. While so, the petitioner herein approached this Court by filing Tr.P.C. No. 18 of 2018 on the ground that the Munsiff's Court has no jurisdiction to try the dispute involved in the Original Suit as the same would fall under Section 7(1) of the Family Court Act. This Court accepted the said contention and passed Ext.P6 order transferring the said Original Suit to the Family Court, Kottarakkara. Thereafter, I.A. No. 3108 of 2017 was re-numbered as I.A. No. 1040 of 2018 in the renumbered OP No. 453 of 2018 of the Family Court, Kottarakkara. 2. The petitioner herein filed objection contending that the order of injunction passed against her was a nullity as the same was O.P.(FC) No. 551/2019 : 4 : passed by the Munsiff's Court, having no jurisdiction to try the Original Suit and therefore, no proceedings can be initiated against her for the alleged violation of the said order. That apart, she contended that she has been residing in the building even prior to the filing of the suit. Eventhough the property and the building was sold by the husband of the petitioner to the respondents herein as his own property, the property and the building were purchased in the name of her husband by utilising the funds of the petitioner herein. 3. After considering the aforesaid rival contentions, the court below allowed I.A. And restored status quo ante on a finding that even if the Munsiff's Court which passed the order of injunction was having no jurisdiction, that order would have been binding on the petitioner herein, unless and until the injunction order was set aside by the appellate court. The legality and correctness of the findings whereby the Family Court allowed I.A. and restored status quo ante, are challenged in this OP(FC). O.P.(FC) No. 551/2019 : 5 : 4. Heard the learned counsel for the petitioner and the learned counsel for the respondents. 5. The sole question that arises for consideration in this OP is whether there is any illegality or impropriety in the findings of the Family Court that even if the court which passed the order of injunction has no jurisdiction, the said order is binding on the party to whom the order was served, unless and until the said order was set aside by the appellate court. 6. Going by the impugned order, we find that aggrieved by the violation of the order of injunction, the respondents have preferred I.A No. 1223 of 2016 under Order XXXIX Rule 2A of CPC to prosecute the petitioner herein, who violated the order of injunction passed in I.A. No. 1223 of 2016 and the same was allowed by attaching the property of the petitioner to enforce the order of injunction. The said order is produced in this Original Petition as Ext.P3. The petitioner has no case that Ext.P3 has not attained finality. In Ext.P3, the court specifically found that after the receipt of order of injunction, the petitioner has trespassed into the plaint schedule property on 16.06.2016 and caused damages to the O.P.(FC) No. 551/2019 : 6 : building therein. Unless and until the said finding is set aside by a competent court, the aforesaid findings are binding on the petitioner. Therefore, no enquiry need be conducted again as to whether the petitioner has violated the order of injunction. 7. As regards the question of jurisdiction, it is true that the order of injunction was passed by the Munsiff's Court and subsequently, the petitioner has approached this Court by filing the Transfer Petition and the Original Suit was transferred to the Family Court on a finding that the matter in dispute involved in the Original Suit would fall under Section 7(1) of the Family Court Act. We are also of the view that even if the Munsiff's Court, Kottarakkara did not have jurisdiction to try the Original Suit, the order of injunction passed by the said Munsiff's Court was binding on the petitioner herein until the same was set aside by the appellate Court. In the instant case, the petitioner has no case that the said order was set aside by the appellate court. It is needless to say, the parties to the lis has no right to disobey or violate the order of the court of law on the ground that the court which passed the order has no jurisdiction and thereby the order is illegal or void. As rightly observed by the O.P.(FC) No. 551/2019 : 7 : Family Court, if a party to a lis is of the opinion that the court passed an order without jurisdiction or is contrary to the law, the remedy open to him is to approach that court to review that order or to approach the superior court to set aside that order in appeal. It is not open to him to violate or disobey that order assuming that the said order is passed without jurisdiction. The above view is supported by the decision of the Supreme Court in Ravi S. Naik v. Union of India[1] and T.M. Bagasarwalla v. H.R. Industries[2] . The court below is justified in finding that the petitioner herein has violated the order of injunction and therefore, the respondents are entitled to get restoration of satus-quo ante. There is no illegality or impropriety in the impugned order. We do not find any reason to interfere with the impugned order under challenge. This OP(FC) is dismissed accordingly. sd/- K. HARILAL, JUDGE. Sd/- ANNIE JOHN, JUDGE. Rv > 1 (1994) Suppl. (2) SCC 641 > 2 1997 KHC 506 O.P.(FC) No. 551/2019 : 8 : ## **APPENDIX** PETITIONER'S/S EXHIBITS: EXHIBIT P1 THE TRUE COPY OF THE PLAINT IN O.S.NO.289/2016 FILED BY THE RESPONDENTS BEFORE THE MUNSIFF COURT, KOTTARAKKARA. - EXHIBIT P2 THE TRUE COPY OF THE ORDER DATED 27/05/2016 IN IA NO.289/2016 IN O.S. NO.289/2016 OF THE MUNSIFF COURT, KOTTARAKKARA. EXHIBIT P3 THE TRUE COPY OF THE ORDER DATED 09/06/2017 IN IA NO.2059/2016 IN O.S. NO.289/2016 OF THE MUNSIFF COURT, KOTTARAKKARA. - EXHIBIT P4 THE TRUE COPY OF IA NO.3108/2017 IN OS NO.289/2016 FILED BY THE RESPONDENTS BEFORE THE MUNSIFF COURT, KOTTARAKKARA. - EXHIBIT P5 THE TRUE COPY OF THE OBJECTION DATED 06/01/2018 FILED BY THE PETITIONER BEFORE THE MUNSIFF COURT, KOTTARAKKARA. - EXHIBIT P6 THE TRUE COPY OF JUDGMENT DATED 09/02/2018 IN T.R.P.(C) NO.18/2018 OF THIS HON'BLE COURT. - EXHIBIT P7 THE TRUE COPY OF ORDER DATED 09/08/2019 IN IA NO.1040/2018 IN OP NO.453/2018 OF THIS HON'BLE COURT. ## RESPONDENTS' EXHIBITS: NIL /True Copy/ rv PS to Judge. O.P.(FC) No. 551/2019 : 9 :