Sunny, Paul Joseph and Mariyamkutty v. Kunjumon

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **TUESDAY, THE 22[ND] DAY OF MARCH 2022 / 1ST CHAITHRA, 1944** ## **OP(C) NO. 611 OF 2021** **AGAINST THE JUDGMENT IN CMA 28/2020 OF ADDITIONAL DISTRICT COURT &** **MOTOR ACCIDENT CLAIMS TRIBUNAL, NORTH PARAVUR IN OS 322/2020 OF MUNSIFF COURT,ALUVA** ## **PETITIONERS/PETITIONERS/PLAINTIFFS/RESPONDENTS:** 1 SUNNY, AGED 55 YEARS, S/O. LATE KOCHOUSEPH, PUTHUSSERY HOUSE, CHOWARA P.O, NEDUVANNUR, ALUVA. 2 PAUL JOSEPH, AGED 61 YEARS FLAT NO. 1704, SUNFLOWER BUILDING, 17TH FLOOR, REGENCY GARDENS, SECTAR 6, PLOT NO. 10, KHARGHAR, NAVIMUMBAI, AUTHORISED BY HIS BROTHER SUNNY, PUTHUSSERY HOUSE, CHOWARA P .O, NEDUVANNUR, ALUVA. 3 MARIYAMKUTTY, AGED 90 YEARS, W/O. LATE KOCHOUSEPH, PUTHUSSERY HOUSE, CHOWARA P.O,NEDUVANNUR, ALUVA, REPRESENTED BY HER NEXT FRIEND SON SUNNY, PUTHUSSERY HOUSE, CHOWARA P.O, NEDUVANNUR, ALUVA. BY ADVS. V.M.ALI SMT.SMITHA VARGHESE ## **RESPONDENT/RESPONDENT/DEFENDANT/APPELLANT:** KUNJUMON, AGED 57 YEARS, S/O. LATE KOCHOUSEPH, PUTHUSSERY HOUSE, CHOWARA P.O, NEDUVANNUR, ALUVA. BY ADV SRI.S.ANANTHAKRISHNAN THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 22.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P(C) No.611 of 2021 2 K.BABU, J . -------------------------------------O.P(C) No.611 of 2021 --------------------------------------Dated this the 22[nd ] day of March, 2022 ## JUDGMENT The judgment dated 01.01.2021 in C.M.A.No.28/2020 passed by the Additional District Court, North Paravur, is under challenge in this Original Petition filed under Article 227 of the Constitution of India. C.M.A.No.28/2020 arose from the order in I.A.No.1/2020 in O.S.No.322/2020 on the file of the Munsiff's Court, Aluva. The parties will be referred to as per the status in the original suit. 2. Plaintiff Nos.1 & 2 and the defendants are siblings. Plaintiff No.3 is their mother. The plaintiffs instituted the original suit for partition of the property scheduled in the suit as 'B' and for a permanent prohibitory injunction regarding 'A' schedule property. 3. Along with the suit, the plaintiffs filed I.A.No.1/2020, an application for temporary injunction. As per order dated 30.09.2020, the Trial Court allowed the application by which the O.P(C) No.611 of 2021 3 defendant No.1 and his men were restrained by a temporary injunction from committing any act of waste in the property and interfering with the peaceful possession and enjoyment of the plaint schedule properties by the plaintiffs. 4. Defendant No.1 challenged the order in I.A.No.1/2020, filing C.M.A.No.28/2020 before the Additional District Court, North Paravur. The Appellate Court allowed C.M.A and dismissed I.A.No.1/2020. 5. The judgment passed by the Appellate Court is under challenge in this original petition. 6. On 08.03.2021, this Court admitted the original petition and passed the following order: “Parties on either side are restrained from committing any waste in the property. The respondent shall not take pits in plaint 'C' schedule pathway and nor damage its existing condition. This order shall continue for a period of three months. Post after summer vacation.” 7. The case of the plaintiffs is that plaint 'A' schedule property extending to 30 cents belonged to plaintiff No.3 and their late father and the defendants. The plaint 'B' schedule property is O.P(C) No.611 of 2021 4 the share of their father, who died intestate. 8. According to the plaintiffs, plaintiff No.1 is cultivating in the plaint schedule property and after the family partition, he continued the cultivation with the consent of the family members. Plaintiff No.1 alleged that defendant No.1 interfered with the possession of the property by plaintiff No.1, and he threatened to damage the properties. 9. Defendant No.1 resisted the application seeking temporary injunction contending, that plaintiff No.1 has no locus standi to institute the suit for and on behalf of their mother. He challenged the description of the properties referred to in the plaint. Defendant No.1 resisted the claim of plaintiff No.1 that he is taking yield from the property. It is further contended that he is looking after their mother. 10. The Trial Court, after appreciating the rival contentions, held that the plaintiffs established a prima facie case for getting the prohibitory injunction as prayed for. The Court found that the balance of convenience is in favour of the plaintiffs for granting O.P(C) No.611 of 2021 5 prohibitory injunction. 11. Based on these findings, the Trial Court granted prohibitory injunction. The District Court found that plaintiff No.1 is legally barred from representing plaintiff No.3, his mother since he has adverse interest against her. The District Court also held that the property sought to be partitioned is an imaginary one carved out from 'A' schedule property. The District Court further held that defendant No.1, being a co-sharer of the property in dispute, cannot be restrained by injunction at the instance of other cosharers. It was also held that the suit as framed is not maintainable. 12. The discretionary relief granted by the Trial Court was challenged before the District Court. The District Court was expected only to consider whether the Trial Court exercised its discretion reasonably and in a judicial manner. The District Court ought not to have gone into the question of maintainability of the suit and the competency of plaintiff No.1 to represent plaintiff No.3 in the suit. O.P(C) No.611 of 2021 6 ## 13. In Wander Limited vs. Antox India Private Limited (1990 ## Supp. SCC 727) , the Apex Court, on the discretion to be exercised by the Appellate Court, held thus : " The appellate court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by that court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to contrary conclusion. 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 may not justify interference with the trial court's exercise of discretion". 14. This Court is of the view that the District Court exceeded its jurisdiction while recording the finding on the maintainability of the suit and the competence of plaintiff No.1 to represent plaintiff No.3. The Court also lost sight of the principles declared by the Apex Court in Wander Limited (supra) . Therefore, this Court holds that the order impugned is liable to be set aside. 15. However, the parties are at liberty to agitate the question O.P(C) No.611 of 2021 7 of maintainability of the suit and the competence of plaintiff No.1 to represent his mother in the proceedings in the Trial Court. 16. As mentioned above, this Court had passed an interim order in respect of the plaint schedule property as per order dated 08.03.2021. Defendant No.1 filed I.A.No.1/2022 against plaintiff No.1, contending that he violated the order passed by this Court on 08.03.2021. The application was resisted by plaintiff No.1, filing counter affidavit dated 21.03.2022. Defendant No.1 had taken out a commission in the Trial Court to establish that the plaintiffs violated the order passed by this Court. 17. Having regard to the nature of the contentions raised by the parties and their relationship and the further fact that admittedly, the parties are co-sharers in respect of a portion of the property, this Court is of the view that the order of injunction granted by the Trial Court cannot be restored as such. This Court is of the view that the order dated 30.09.2020 of the Trial Court in I.A.No.1/2020 is to be modified to meet the ends of justice. The order is modified as follows: O.P(C) No.611 of 2021 8 (i) The parties are directed to maintain status quo in respect of the plaint schedule properties as reported in the commission report dated 28.09.2021 (Ext.C1). - (ii) The parties shall not commit any act of waste in the plaint schedule properties. 18. A decision on I.A.No.1/2022, the application filed under Order 39 Rule 2A CPC, can be taken only after taking evidence. Therefore I.A.No.1/2022 is relegated to the Trial Court along with the counter affidavit filed by plaintiff No.1 for taking evidence and recording finding as to whether plaintiff No.1 has committed violation of the order of this Court dated 08.03.2021. It is made clear that the Trial Court is required to take evidence during the course of final trial of the proceedings. The Trial Court shall report the findings on the averments raised by the parties in support of and against I.A.No.1/2022 to this Court. The Trial Court is directed to dispose of the original suit within three months from the date of receipt of a copy of this judgment. The Trial Court is at liberty to O.P(C) No.611 of 2021 9 seek extension of time, if required. It is made clear that this Court has not made any observation on the merit of the rival claims. The Original Petition is disposed of as above. Sd/K.BABU, JUDGE KAS O.P(C) No.611 of 2021 10 ## **APPENDIX OF OP(C) 611/2021** PETITIONER EXHIBITS EXHIBIT P1 THE TRUE COPY OF THE ORDER IN I.A 1/2020 OF MUNSIFF COURT, ALUVA. EXHIBIT P2 THE TRUE COPY OF THE ORDER IN CMA 28/2020 OF ADDITIONAL DISTRICT COURT, PARAVUR. EXHIBIT P3 TRUE COPY OF THE COMMISSION REPORT DATED 28.09.2021