IN THE HIGH COURT OF KERALA AT ERNAKULAM
FAO.No. 340 of 2010()
1. NABEESUMMA,W/O.IBRAHIM,KADUVANGATTIL
... Petitioner
Vs
1. PATHUMMA,W/O.LATE MUHAMMEDKUTTY,
... Respondent
2. NOORJAHAN,D/O.MUHAMMEDKUTTY,
3. JAMEELA,MUHAMMEDKUTTY,
4. RASHEEDA,MUHAMMEDKUTTY,
5. SAINUDHEEN,S/O.LATE AMEER,
For Petitioner :SRI.V.K.BALACHANDRAN
For Respondent : No Appearance
The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN
The Hon'ble MR. Justice P.BHAVADASAN
Dated :22/10/2010
O R D E R
THOTTATHIL.B.RADHAKRISHNAN & P.BHAVADASAN, JJ.
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FAO No.340 of 2010
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Dated 22nd October 2010
Judgment
Thottathil.B.Radhakrishnan, J.
One among the two plaintiffs in a suit for
partition is the appellant. She challenges the order of the
court below, dismissing an application for temporary
injunction to restrain the defendants from alienating the suit
property or committing any act of waste or installing any
mobile tower in the suit property.
2. The suit property originally belonged to
Kunuthumma. She had two children – Khadeejumma and
Muhammedkutty. In defence to the application, the
defendants produced Ext.B1 registered release deed by
Khadeejumma in favour of some among the defendants.
On the basis of this registered release deed, the court
below took the view that the plaintiffs do not have a prima
facie case to sustain the order of temporary injunction.
FAO No.340/10 2
Though the learned counsel for the appellant states that his
client had filed a replication, essentially challenging Ext.B1
as a fraudulent one and attributing that Khadeejumma did
not have the mental capacity to execute any such
document, we are of the view that on the face of Ext.B1
registered document, the court below was justified in taking
the view that prima facie, the order of temporary injunction
cannot be granted. Obviously, if the plaintiffs succeed at
trial ultimately, any transaction pending suit would
essentially be defeated by lis pendens. Under such
circumstances, we are of the view that irreparable injury is
not demonstrated if temporary injunction is refused. The
contesting defendants have a case that on the strength of
Ext.B1, they have absolute right to property and they have
entered into an agreement under which they have
permitted a mobile telephone operator to install a tower.
The balance of convenience is not in favour of restraining
the defendants from giving effect to that agreement in
accordance with law.
FAO No.340/10 3
3. For the aforesaid reasons, we do not find any
ground to entertain this appeal and the same is accordingly
dismissed, clarifying that the views expressed in the
impugned order and also the observations in this Judgment
would not stand in the way of the parties at trial and the
court below would ultimately decide the suit, untrammeled
by anything stated herein above or in the impugned order.
Thottathil.B.Radhakrishnan,
Judge.
P.Bhavadasan,
Judge
sta
FAO No.340/10 4