Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE SATHISH NINAN WEDNESDAY, THE 06TH DAY OF FEBRUARY 2019/17TH MAGHA, 1940 (SEEKING DIRECTION TO CONSIDER I.A.No.698/2018 IN I.A.NO.465/2018 IN A.S.No.28/2018 OF DISTRICT COURT, THODUPUZHA) PETITIONER/APPELLANT: JOSEPH, AGED 64 YEARS, S/O.CHACKO, THENAMKARAYIL HOUSE, VADAKKUMMURI, THODUPUZHA.EST.P.O, IDUKKI-685 584. BY ADVS. SRI.GEORGE MATHEW SHRI.MATHEW K.T. SHRI.SUNIL KUMAR A.G SMT.BHANU THILAK SRI.DIPU JAMES SRI.M.D.GANGADHARAN SRI.M.D.SASIKUMARAN RESPONDENTS/RESPONDENTS: 1 RONJIA JOSEPH, AGED 37 YEARS, W/O.JOBY ABRAHAM, UZHUNNALIL KAMPAKATHUNKAL HOUSE, KURINJI.P.O., RAMAPURAM VILLAGE, MEENACHIL TALUK-686 576. 2 JOBY ABRAHAM, AGED 41 YEARS, S/O.ABRAHAM, UZHUNNALIL KAMPAKATHUNKAL HOUSE, KURINJI.P.O., RAMAPURAM VILLAGE, MEENACHIL TALUK-686 576. BY ADVS. DR.GEORGE ABRAHAM SRI.V.K.SAJI THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 06.02.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
JUDGMENT
The dispute involved is between, the father and son on one hand, and the daughter and the son-in-law on the other. The father is the petitioner in this Original Petition. The petitioner filed a suit for specific performance as O.S.No.9/2015 before the Sub Court, Thodupuzha. The son-in-law filed a suit as O.S.No.204/2013 before the Munsiff's Court, Thodupuzha. The subject matter involved in both the suits is a residential building.
2. The suit O.S.No.204/2013 was transferred to the Sub Court, and re-numbered as O.S.No.30/2017. The contention of the plaintiff therein was that, the defendants
were permitted to reside in the building, since the plaintiff was abroad. The defendants are the son of the plaintiff
herein and his wife.
3. The suits were jointly tried. As per
judgment dated 14.6.2018, the learned Sub
Judge dismissed O.S.No.9/2015 - the suit for specific performance and decreed O.S.No.30/2017 - mandatory injunction.
4. Challenging the decree and judgment
in O.S.No.9/2015, the petitioner filed an appeal before the District Court, Thodupuzha. In the appeal, he filed an application as I.A.No.465/2018, for prohibitory injunction to restrain the respondents from evicting him from the plaint schedule property by way of process of execution of the decree in O.S.No.30/2017 - mandatory injunction. The
learned District Judge as per Ext.P3 order
dated 2.11.2018 dismissed the application. Seeking review of the order, the petitioner has filed I.A.No.698/2018 before the District Judge, Thodupuzha and the said application is pending. The petitioner seeks that till consideration of the said application, further proceedings in execution of the decree in O.S.No.30/2017 of the Sub Court, Thodupuzha be kept in abeyance.
5. It is brought to my notice that the
judgment debtors in O.S.No.30/2017 has
already surrendered the key of the building and filed a memo before the Sub Court, Thodupuzha to the said effect. On the facts as noticed supra, I do not think that this is a fit case where the discretionary jurisdiction under Article 227 of the Code of Civil Procedure is liable to be invoked.
The original petition fails and the same is accordingly dismissed. Sd/- SATHISH NINAN JUDGE ss APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF APPEAL MEMORANDUM DTD.01/08/2018 IN.A.S.NO.28/2018 OF THE DISTRICT COURT, THODUPUZHA. EXHIBIT P2 TRUE COPY OF IA..NO.465/2018 IN A.S.NO.28 OF 2018 DTD.01/08/2018 OF THE DISTRICT COURT, THODUPUZHA. EXHIBIT P3 TRUE COPY OF THE ORDER DATED 02/11/2018 IN EXT.P2 PASSED BY THE DISTRICT COURT, THODUPUZHA.
EXHIBIT P4 TRUE COPY OF I.A.NO.698/2018 IN
I.A.NO.465/2018 IN A.S.NO.28/2018
DTD.01/12/2018 OF DISTRICT COURT,THODUPUZHA. EXHIBIT P5 TRUE COPY OF FRONT PAGE OF RATION CARD NO.1628080922 ISSUED FROM THE OFFICE OF TALUK SUPPLY OFFICE, THODUPUHZHA.