High Court Kerala High Court

Avathukattil Abdulla vs Muthodan Hassan on 17 October, 2008

Kerala High Court
Avathukattil Abdulla vs Muthodan Hassan on 17 October, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 30659 of 2008(Y)



1. AVATHUKATTIL ABDULLA
                      ...  Petitioner

                        Vs

1. MUTHODAN HASSAN
                       ...       Respondent

                For Petitioner  :SRI.JOSEPH SEBASTIAN PURAYIDAM

                For Respondent  : No Appearance

The Hon'ble MR. Justice V.RAMKUMAR

 Dated :17/10/2008

 O R D E R
                            V. RAMKUMAR , J.
               ==========================
                         W.P.(C) No. 30659 of 2008
               ==========================
                 Dated this the 17th day of October, 2008.

                               JUDGMENT

The petitioners who are the plaintiffs in O.S. No. 136 of 2008 on

the file of the Munsiff’s Court, Perinthalmanna, seek a temporary

injunction as prayed for in Ext.P2 interlocutory application filed before

the court below till the court below passes orders on Ext.P2 application

filed as I.A. No. 822 of 2008. The injunction prayed for is against the

installation of a transmission tower by the third defendant in the plaint

A schedule property which is the property adjacent to the property of

the petitioners/plaintiffs. According to the plaintiffs, if the tower is

installed, it will detrimentally affect the interests of the plaintiffs. The

petitioners would have it that the learned Munsiff ought to have

granted an ad interim order of injunction in I.A. No. 822 of 2008. But,

that court has only ordered notice. Hence this writ petition.

2. The grievance of the petitioners is not that the third

defendant is intending to trespass upon the property of the petitioners

for the purpose of installing the tele communication tower. Their

grievance is really that if a tele communication is installed in the

neighbouring property, it will detrimentally affect the

petitioners/plaintiffs. That is a matter to be considered after hearing

W.P.(C) No. 30659/2008 : 2:

the respondents as well. That was precisely why the learned Munsiff

was only inclined to order notice on Ext.P2 application filed as I.A. No.

822 of 2008. After the amendment of Order 39 C.P.C., the normal

rule is to order notice to the opposite party and granting of an ad

interim order of injunction is an exception and will be justified only in

case the court is of the view that the object of granting injunction will

be defeated by delay. Even before the amendment of C.P.C., this

Court had taken the same view (vide R.T.O v/s. N.V. Motor Service –

1973 KLJ 608). Hence, I see no reason to interfere with the discretion

exercised by the learned Munsiff in ordering notice instead of granting

an ex parte order of injunction. It is up to the learned Munsiff to

consider the pros and corns after hearing the parties and then decide

whether an interim injunction as prayed for is to be granted or not.

This writ petition is accordingly dismissed.

Dated this the 17th day of October, 2008.

V. RAMKUMAR, JUDGE.

rv

W.P.(C) No. 30659/2008 : 3:

W.P.(C) No. 30659/2008 : 4: