IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 25944 of 2009(O)
1. PAYYANATAN SANTHA KUMARI,
... Petitioner
Vs
1. PREMAJA RAMACHANDRAN,
... Respondent
For Petitioner :SRI.V.RAMKUMAR NAMBIAR
For Respondent : No Appearance
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :15/09/2009
O R D E R
S.S.SATHEESACHANDRAN, J.
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W.P.(C).NO.25944 OF 2009 ()
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Dated this the 15th day of September, 2009
J U D G M E N T
The writ petition is filed seeking mainly the following
relief:
i. to call for the records in
I.A.No.2751/2008 in O.S.No.353/2008
of the Munsiff's Court, Kannur,
affirmed by the Order in
C.M.A.No.34/2008 of the Principal
Subordinate Court, Thalassery and set
aside Ext.P6 order of the Musniff of
Kannur in I.A.No.2751/2008 in
O.S.No.353/2008 dated 21.8.2008 and
Ext.P7 order of the Principal
Subordinate Court, Thalassery in
C.M.A.NO.34/2008 dated 27.7.2009 in
the interests of justice.
2. Petitioner is the defendant in O.S.No.353 of 2008 on
the file of the Munsiff Court, Kannur. Suit is one for a decree
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of perpetual prohibitory injunction, and the respondent is the
plaintiff. Petitioner is admittedly the tenant of the building
owned by the respondent. Previously, the petitioner had
instituted a suit against another, who was granted permission
to occupy the tenanted premises for carrying out the business,
on his refusal to vacate the premises on termination of the
licence. That suit was fraught up to a second appeal before
this Court, in which, a decree of eviction was granted in
favour of the petitioner. Pursuant thereto, the building was
got delivered over from the judgment debtor in that suit
through court to the petitioner. Thereafter, the petitioner
made some attempts to carry out maintenance and repairs to
the tenanted premises, and at that stage, the respondent
landlord filed the above suit seeking for a decree of perpetual
prohibitory injunction to restrain the petitioner from carrying
out the repairs and maintenance. An application for interim
injunction moved by the respondent for an identical relief till
the disposal of the suit was not granted by the learned
Munsiff. Challenge raised against that order by the petitioner
preferring an appeal was also unsuccessful. Impeaching the
WPC.25944/09 3
propriety and correctness of the judgment passed in the
C.M.Appeal preferred against the order of the learned
Munsiff, petitioner has filed this writ petition invoking the
supervisory jurisdiction vested with this Court under Article
227 of the Constitution of India.
3. I heard the learned counsel for the petitioner. Having
regard to the submissions made and taking note of the facts
and circumstances presented with reference to the order
passed by the learned Munsiff and the judgment rendered by
the learned Sub Judge, I find no notice to the respondent is
necessary, and, hence, it is dispensed with. The courts below
have concurrently found that the respondent/plaintiff is not
entitled to the discretionary relief of injunction applied for.
After going through the order of the learned Munsiff and also
the judgment rendered by the learned Sub Judge, I find the
order/judgment does not suffer from any jurisdictional
infirmity warranting interference invoking the visitorial
jurisdiction vested with this Court. The learned counsel for
the petitioner submitted that no material alteration was
WPC.25944/09 4
intended to be carried out by the petitioner/defendant, but,
she desired to carry out some minor repairs since the building
was delivered over from her licencee in occupation in a
deplorable condition. In the building, it is submitted, hotel
business was carried out. To make it fit and proper for
running the business, according to the learned counsel for the
petitioner, it is absolutely essential to carry out some minor
repairs. Needless to point out, as a tenant, petitioner may be
entitled to carry out minor repairs and maintenance, but, in
the given facts of the case where the court has passed an
order, after hearing both sides, restraining the petitioner
tenant from carrying out any repairs and maintenance in the
building, it may not be possible for this Court to issue any
direction permitting the petitioner to carry out minor repairs
in the building. However, I make it clear that irrespective of
the order passed by the learned Munsiff, which was upheld by
the learned Sub Judge, it is open to the petitioner to seek
permission from the trial court for carrying out minor repairs
in the building without in any way causing material alteration,
and that too, under the supervision of an Advocate
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Commissioner appointed by the court and also at her expense.
I am not expressing any opinion on the merit of the
application, if so moved. It is for the learned Munsiff to
consider such application, if so moved, after hearing the
respondent as well. Reserving the right of the petitioner to
move such an application and leaving it to the discretion of the
learned Munsiff to pass appropriate orders in accordance with
law, after hearing the respondent, the writ petition is closed.
S.S.SATHEESACHANDRAN
JUDGE
prp