Arthur David vs Selvaraj

Type Court Judgment Court Kerala Decided May 25, 2021

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https://sooperkanoon.com/case/1637273

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Citation: sooperkanoon.com/1637273
Court: Kerala High Court
Decided On: May 25, 2021
Case Number: OP(C)/989/2021

Parties & Advocates

Appellant / Petitioner

Arthur David

Respondent

Selvaraj

Excerpt

.....obtained without clarifying the actual right of the parties. hence, in the suit, relief sought is to set aside the compromise decree. the appeal was also dismissed holding that there cannot be any direction to maintain status quo.3. to grant an order of status quo, the status as on the date of passing the order has to be clearly ascertained. no commission was taken out.4. having considered this, i am inclined to direct thatconstruction if any made in the property by the defendant will be subject to the decision of the suit. however, this will not preclude the petitioner from filing a fresh application along with an application for take out commission and the lower court will be free to pass appropriate orders on the basis of status as disclosed from the commission report.the original petition is disposed of accordingly. sd/- sunil thomas judge skp/25-5 appendix petitioner's exhibits: exhibit p1 the copy of the relevant pages of the sale deed no. 3416/1995 of kulathoor sub registrar office. exhibit p2 the copy of the basic tax receipt dated 22.06.2020 issued by the village officer, kulathoor. exhibit p3 the copy of the mediation agreement with plan in o.s.no. 856 of 2015 on the file of the additional munsiffs corut-1, neyyattinkara exhibit p4 the copy of the judgment in o.s. no. 865 of 2015 on the files of the additional munsiffs corut-1, neyyattinkara. exhibit p5 the copy of the plaint in o.s. no. 768 of 2020 on the files of the munsiffs court neyyattinkara. exhibit p6 the copy of the affidavit and application in i.a. no. 1 of 2021 in o.s. no. 768 of 2020 on the files of the munsiffs court neyyattinkara. exhibit p7 the copy of the order dated 10.11.2020 in i.a. no. 1 of 2020 in o.s. no. 768 of 2020 on the files of the munsiffs court neyyattinkara. exhibit p8 the copy of the interim order dated 11.02.2021 in wpc no. 3608 of 2021 of this honble court. exhibit p9 the copy of the order dated 08.04.2021 in i.a. no. 02/2021 in c.m.a. no. 30/2021 on the files of.....

Full Judgment

IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE SUNIL THOMAS TUESDAY, THE 25TH DAY OF MAY 2021 / 4TH JYAISHTA, 1943 AGAINST THE ORDER/JUDGEMENT DATED 08.04.2021 IN I.A. NO.02/2021 IN CMA 30/2021 ON THE FILES OF SUB COURT,NEYYATTINKARA, THIRUVANANTHAPURAM PETITIONER/PETITIONER/APPELLANT: ARTHUR DAVID AGED 55 YEARS PUTHEN VEEDU, KULATHOOR DESOM, KULATHOOR VILLAGE BY ADV MATHEW KURIAKOSE RESPONDENT/RESPONDENT/RESPONDENT: SELVARAJ AGED 56 YEARS PUTHEN VEEDU, KULATHOOR DESOM, KULATHOOR VILLAGE, THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 25.05.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

JUDGEMENT

Dated this the 25th day of May 2021

The petitioner herein who is the plaintiff before the trial court filed an application for injunction. Injunction application was dismissed which was carried in CMA No.30 of 2021. Along with that, the petitioner had filed IA No. 2 of 2021 for directing status quo to be maintained. That was dismissed by Ext.P9 order, which is now under challenge.

2. It seems that the respondent is claiming right on

the basis of a compromise decree. The petitioner contends that the above compromise decree has been obtained without clarifying the actual right of the parties. Hence, in the suit, relief sought is to set aside the compromise decree. The appeal was also dismissed holding that there cannot be any direction to maintain status quo.

3. To grant an order of status quo, the status as on the date of passing the order has to be clearly ascertained. No commission was taken out.

4. Having considered this, I am inclined to direct that

construction if any made in the property by the defendant will be subject to the decision of the suit. However, this will not preclude the petitioner from filing a fresh application along with an application for take out commission and the lower court will be free to pass appropriate orders on the basis of status as disclosed from the commission report.

The Original Petition is disposed of accordingly. Sd/- SUNIL THOMAS JUDGE SKP/25-5 APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1 THE COPY OF THE RELEVANT PAGES OF THE SALE DEED NO. 3416/1995 OF KULATHOOR SUB REGISTRAR OFFICE. EXHIBIT P2 THE COPY OF THE BASIC TAX RECEIPT DATED 22.06.2020 ISSUED BY THE VILLAGE OFFICER, KULATHOOR. EXHIBIT P3 THE COPY OF THE MEDIATION AGREEMENT WITH PLAN IN O.S.NO. 856 OF 2015 ON THE FILE OF THE ADDITIONAL MUNSIFFS CORUT-1, NEYYATTINKARA EXHIBIT P4 THE COPY OF THE JUDGMENT IN O.S. NO. 865 OF 2015 ON THE FILES OF THE ADDITIONAL MUNSIFFS CORUT-1, NEYYATTINKARA. EXHIBIT P5 THE COPY OF THE PLAINT IN O.S. NO. 768 OF 2020 ON THE FILES OF THE MUNSIFFS COURT NEYYATTINKARA. EXHIBIT P6 THE COPY OF THE AFFIDAVIT AND APPLICATION IN I.A. NO. 1 OF 2021 IN O.S. NO. 768 OF 2020 ON THE FILES OF THE MUNSIFFS COURT NEYYATTINKARA. EXHIBIT P7 THE COPY OF THE ORDER DATED 10.11.2020 IN I.A. NO. 1 OF 2020 IN O.S. NO. 768 OF 2020 ON THE FILES OF THE MUNSIFFS COURT NEYYATTINKARA. EXHIBIT P8 THE COPY OF THE INTERIM ORDER DATED 11.02.2021 IN WPC NO. 3608 OF 2021 OF THIS HONBLE COURT. EXHIBIT P9 THE COPY OF THE ORDER DATED 08.04.2021 IN I.A. NO. 02/2021 IN C.M.A. NO. 30/2021 ON THE FILES OF THE SUB COURT, NEYYATTINKARA. RESPONDENT'S EXHIBITS: NIL TRUE COPY P.A. TO JUDGE

Same Court & Year Kerala · 2021 Same Parties Arthur David vs Selvaraj