Sudheerkumar v. Praveena

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** **&** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **THURSDAY ,THE 30TH DAY OF AUGUST 2018 / 8TH BHADRA, 1940** **Mat.Appeal.No. 784 of 2018** **AGAINST THE ORDER IN IA NO.498/2018 IN OP 264/2018 of FAMILY COURT, PALAKKAD DATED 19-06-2018** ## **APPELLANT/RESPONDENT:** **SUDHEERKUMAR AGED 50 YEARS MOZHIKULANGARA, KODUVALAPPIL VEEDU MANALITHARA VILLAGE THAAPPILLY TALUK, THRISSUR** **BY ADV. SRI. L. RAJESH NARAYAN** ## **RESPONDENT/PETITIONER:** **PRAVEENA AGED 33 YEARS MOOCHIKKAL VEEDU ,VALLIKODU POST PALAKKAD - 678533** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 20.08.2018, THE COURT ON 30.08.2018 DELIVERED THE FOLLOWING:** Mat.Appeal No.784/2018 2 **"CR"** ## **JUDGMENT** ## **R.Narayana Pisharadi, J** An order granting temporary injunction is interlocutory in nature. Appeal against an order of temporary injunction passed by a Family Court is not maintainable. This is the dictum laid down by a Division Bench of this Court consisting one of us (Justice C.K.Abdul Rehim) in **Manga Lakshmi v. Basanth Kumar (2016 (3) KHC 111 : 2016(2) KLT 776)** . But, this appeal is filed ignoring the aforesaid declaration of law made by this Court in _**Manga Lakshmi**_ (supra). 2. The appellant is the husband of the respondent. Their marriage was solemnised on 06.10.2005. The appellant filed O.P.No.1222 of 2017 against the respondent in the Family Court, Thrissur for granting a decree for cancellation of the settlement deed No.4048/2012 which was executed by him in favour of the respondent in respect of the petition schedule property. His plea in the original petition is that the settlement deed executed by him is a sham document and that the respondent has not acquired any right over the petition schedule property by virtue of Mat.Appeal No.784/2018 3 that document. 3. The case O.P.No.1222/2017 was subsequently transferred to the Family Court, Palakkad and numbered as O.P.No.264 of 2018. Thereafter, the respondent filed an application as I.A.No.498/2018 for granting an order of temporary injunction against the appellant restraining him from entering into the petition schedule property or altering its nature or committing any waste therein and also making any construction therein. She also prayed for an order of temporary injunction restraining the respondent from causing any obstruction to her to enter into the petition schedule property and taking yield from the trees in the property. She alleged that when she went to the property on 06.04.2018 to take the yield from the coconut trees, the appellant obstructed her from entering into the property. 4. The appellant filed counter statement in the application for temporary injunction filed by the respondent refuting the allegations made against him and contending that the respondent has got no right or possession over the property. 5. As per the impugned order, the Family Court granted an order of temporary injunction in favour of the respondent restraining the appellant from altering the nature of the petition schedule property, causing any mischief therein and causing any obstruction to the Mat.Appeal No.784/2018 4 respondent from entering into the property and collecting coconuts from the coconut trees in the property and making any construction therein. This order is challenged in the appeal. 6. We have heard the learned counsel for the appellant. 7. Section 19(1) of the Family Courts Act, 1984 (hereinafter referred to as 'the Act') provides that, notwithstanding anything contained in the Code of Civil Procedure, 1908 or in the Code of Criminal Procedure, 1973 or in any other law, an appeal shall lie against every judgment or order, not being an interlocutory order, of a Family Court to the High Court, both on facts and on law. Sub-section (5) of Section 19 of the Act further provides that, except as provided under sub-sections (1) to (4), no appeal or revision shall lie to any Court from any judgment, order or decree of a Family Court. 8. It is evident that an interlocutory order is excluded from the ambit of sub-section (1) of Section 19 of the Act which provides for an appeal against "every judgment or order of a Family Court”. The position is made further clear by sub-section (5) Section 19 of the Act. 9. In _**Manga Lakshmi**_ (supra), this Court has held that an order of temporary injunction passed by a Family Court does not finally decide the rights and obligations of the parties and that it is only intended to preserve the subject matter of the lis. It is an order which is procedural Mat.Appeal No.784/2018 5 in nature rather than substantive in deciding the issues involved in the case. Taking note of the legislative intent involved in Section 19 of the Act, this Court held that an order of temporary injunction passed by a Family Court is an interlocutory order and no appeal shall lie against it. 10. Orders of temporary injunction, appointment of receiver etc. are designed to preserve the subject matter of the lis. They are intended to ensure that the parties would not be prejudiced by the normal delay in finally deciding the disputes. They do not finally decide in any manner the merits of the controversy in issue in the suit or the proceedings. They do not finally deal with the rights of the parties. They are not final decisions on the matters in dispute. They do not put an end to the lis. They are interlocutory in nature. 11. Recently, in **Vivek Joy v. Chinchu Grace Lukose (2018 (3) KLT 657)** , we had occasion to examine what is meant by an 'interlocutory order'. We have pointed out in that decision that the observations made in _**Manga Lakshmi**_ (supra) have to be understood in the context of deciding whether an order of temporary injunction is interlocutory or not. In this context, it is to be noted that the proceedings in an application for temporary injunction cannot be considered as independent proceedings, separate and distinct from the proceedings in the suit. Mat.Appeal No.784/2018 6 12. The intention of the legislature in providing a ban on appeal against interlocutory orders passed by a Family Court has been explained by this Court in **Thankappan Nair v. Prasanna Kumari (ILR 1995** ## **(3) Kerala 638)** as follows: _“What would have been the legislative intent in providing such a ban. The parties in Family Courts very often include destituted and orphaned wives and/or children and perhaps poor widows also. If appeal or revision is provided against interlocutory order the proceedings in the Family Court could successfully be scuttled by rich and contumacious opposite parties by taking the matter to the High Court against any order passed during interlocutory stages. Legislature would have intended to prevent it”._ 13. We reiterate and hold that an order of the Family Court, either allowing or dismissing an application for temporary injunction, is an iterlocutory order and no appeal shall lie against such order in view of the provision contained in Section 19(1) of the Act. 14. Having confronted with the aforesaid situation, learned counsel for the appellant would pray that the legality and propriety of the impugned order may be examined by this Court by invoking the supervisory jurisdiction under Article 227 of the Constitution of India. We are inclined to do so in the larger interests of justice. 15. Admittedly, the appellant had executed a settlement deed in Mat.Appeal No.784/2018 7 favour of the respondent in respect of the petition schedule property in the year 2012. Therefore, prima facie, the respondent is the owner of the petition schedule property. On a perusal of the settlement deed executed by the appellant in favour of the respondent, it is seen that there is a specific recital in that document that he had given possession of the property to the respondent. There is also another recital in that document to the effect that he has no objection to the enjoyment of the property by the respondent with absolute freedom. Therefore, prima facie, the respondent has got title as well as possession over the petition schedule property and she has been in enjoyment of the property since the year 2012. 16. The appellant had filed an application for temporary injunction against the respondent. In that application, he sought only an order of injunction restraining the respondent from alienating the petition schedule property or creating any encumbrance upon that property. Conspicuously, he did not pray for an order of injunction against her to restrain her from entering into the property or disturbing his peaceful possession over the property. The court below has taken note of this aspect in reaching a finding that the respondent has been in possession and enjoyment of the petition schedule property. 17. As the respondent has got title and possession over the Mat.Appeal No.784/2018 8 petition schedule property and as she has been enjoying the property from the year 2012 onwards, withholding an order of injunction in her favour would cause irreparable injury to her. Balance of convenience is also in her favour and not in favour of the appellant. In such a situation, we see no illegality or impropriety in the impugned order passed by the court below. 18. We also take notice of the fact that inspite of a prayer made by the respondent for granting an injunction against the appellant restraining him from entering into the petition schedule property no such order has been granted by the court below in her favour. 19. The appellant has not raised any plea or contention that an application for temporarary injunction by a defendant/ respondent in a suit or proceedings is not maintainable. The court has inherent jurisdiction to issue temporary injunction in circumstances which are not covered by the provisions of Order XXXIX of the Code of Civil Procedure, 1908. There is nothing in Order XXXIX Rules 1 and 2 of the Code which specifically provides that a temporary injunction shall not be issued in cases which are not mentioned therein (See **Manoharlal v. Seth Hiralal: AIR 1962 SC 527** ). It is settled law that under Section 151 of the Code, the court has got inherent power to protect the rights of the parties pending the proceedings (See **Rajnibai v. Kamla Devi : AIR** Mat.Appeal No.784/2018 9 **1996 SC 1946** ). It is also now settled law that an order of temporary injunction can be granted against the plaintiff at the instance of the defendant in appropriate cases (See **James v. Jaimon James : 1998** **(1) KLT 233** and **Shibu v.Rajammal : 2017 (3) KHC 773** ). In particular circumstances, the court is entitled to grant injunction against the plaintiff if the relief claimed by the defendant in that regard has arisen out of the plaintiff's cause of action or it is incidental to it. 20. True, in the instant case, the court below has passed the impugned order under Order XXXIX Rule 1 of the Code of Civil Procedure, 1908 and not under Section 151 of the Code. Mentioning of a wrong provision, by itself, will not take away the power of the court if it is vested in it in law (See **Nagappa v. Muralidhar: AIR 2008 SC 2010** and **Kumaradasan Nair v. IRIC Sohan : AIR 2009 SC 1333** ). If an authority has power under law, merely because reference is made to a wrong provision of law, it will not vitiate the exercise of power so long as the power does exist and can be traced to a source available in law (See **Mani v. Sangeetha Theatre : (2004) 12 SCC 278** and **Ram Sunder Ram v. Union of India : (2007) 13 SCC 255** ). 21. Even an appellate court cannot lightly interfere in the exercise of discretion by a subordinate court in the matter of granting or refusing temporary injunction unless such an order is palpably perverse. Mat.Appeal No.784/2018 10 Perversity can pertain to the understanding of law or the appreciation of pleadings or evidence. If the discretion has been exercised by the trial court reasonably and in a judicial manner, the fact that the appellate court would have taken a different view, would not justify interference with the trial court's exercise of discretion. Even an appellate court will not interfere with the exercise of discretion by the lower court and substitute its own discretion except where the discretion has been shown to have been exercised by the court below arbitrarily or capriciously or perversely or where it has ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. If that be the situation in case of exercise of jurisdiction by an appellate court, the limitations in exercising the supervisory jurisdiction of this Court under Article 227 of the Constitution are more rigorous. The supervisory jurisdiction conferred on this Court under Article 227 of the Constitution of India is confined only to see whether an inferior court or tribunal has proceeded within the parameters of its jurisdiction. In the exercise of jurisdiction under Article 227 of the Constitution of India, it is not open to this Court to review or re-assess the evidence and to substitute its view with the view taken by the lower court. 22. To conclude, we find that the appeal filed against the order of temporary injunction granted by the Family Court is not maintainable in Mat.Appeal No.784/2018 11 view of the provisions contained in Section 19 of the Act. We also see no ground to interfere with the impugned order passed by the court below in exercise of the jurisdiction of this Court under Article 227 of the Constitution of India. Consequently, we dismiss the appeal. **C.K.ABDUL REHIM, JUDGE** **R.NARAYANA PISHARADI, JUDGE jsr/29/8/18** Mat.Appeal No.784/2018 12 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** |**ANNEXURE A1**|**TRUE COPY OF THE SETTLEMENT DEED DATED**| |---|---| ||**06.09.2012.**| |**ANNEXURE A2**|**TRUE COPY OF THE ORIGINAL PETITION DATED**| ||**15.07.2017**| |**ANNEXURE A3**|**TRUE COPY OF I.A.NO.498/2018 DATED**| ||**09.04.2018**| |**ANNEXURE A4**|**TRUE COPY OF THE OBJECTION DATED 21.04.2018**| |**ANNEXURE A5**|**TRUE COPY OF THE COMMISSION REPORT DATED**| ||**07.05.2018.**| |**ANNEXURE A6**|**CERTIFIED COPY OF THE ORDER DATED**| ||**19.06.2018 IN I.A.NO.498/2018 IN O.P.NO.264**| ||**OF 2018 ON THE FILES OF THE HON'BLE FAMILY**| ||**COURT, PALAKKAD**| ## **RESPONDENT'S EXHIBITS:** ## **NIL** ## **TRUE COPY** **PS TO JUDGE**