IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 4587 of 2009(U)
1. OMANA K.
... Petitioner
Vs
1. PADINJAREKANDY LINESSH ,S/O.NARAYANAN
... Respondent
2. K.V.BHASKARAN, S/O.KUNHOOTTY
3. PURUTHOSHAMAN, S/O. CHATHUKUTTY
4. AMMANCHERRY RAJAN, S/O.KUNHIRAMAN
For Petitioner :SRI.CIBI THOMAS
For Respondent : No Appearance
The Hon'ble MR. Justice K.T.SANKARAN
Dated :11/02/2009
O R D E R
K.T.SANKARAN, J.
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W.P.(C).No.4587 of 2009
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Dated this the 11th day of February, 2009
JUDGMENT
The Writ Petition is filed by the plaintiff in O.S.No.241/07
on the file of the court of the Munsiff of Koothuparamba. The
suit was filed by her against the respondents for permanent
prohibitory injunction. The petitioner filed I.A.No.2050/07 for
temporary injunction. The respondents filed I.A.No.177/08
claiming compensation under Section 95 of the Code of Civil
Procedure. The trial court dismissed the application for
temporary injunction. The trial court also granted a sum of
Rs.5,000/- as compensation to the respondents. Challenging the
common order passed by the trial court, the petitioner filed Civil
Miscellaneous Appeal No.3 of 2003 before the court of
Subordinate Judge of Thalassery. The appellate court dismissed
the appeal. The Writ Petition is filed challenging the judgment
in C.M.A.No.3 of 2003.
2. The case of the petitioner is that she got title and
possession over an extent of 75 cents of land as per a gift deed
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executed in her favour and in favour of her sisters and the
mother. It is stated that though the extent is shown as 54 cents,
the donees have title and possession over an extent of 75 cents.
3. The respondents/defendants entered appearance and
contended that the petitioner/plaintiff has suppressed material
facts and obtained an order of interim injunction. They
contended that the petitioner and her two sisters had filed
O.S.No.96/1988. Defendant No.2 in the present suit is the
transferee from defendant No.3 in O.S.No.96 of 1988. In the
earlier suit, originally, the extent was shown as 54 cents by the
plaintiff. Later, a new schedule was incorporated as schedule B
and the plaintiff therein claimed title in respect of 21 cents of
land shown in the B schedule. O.S.No.96/1988 was dismissed on
30.11.1992. A.S.No.25/93 filed against the judgment and decree
in that suit was dismissed on 23.10.1993. Though S.A.No.
544/1994 was filed by the plaintiff, the Second Appeal was
dismissed by the High Court on 5.9.2007. All these facts were
suppressed by the petitioner in the present suit and an order of
injunction was obtained.
4. The trial court held that the petitioner is not entitled
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to any discretionary relief, she having suppressed material facts.
It was also found that a conclusive finding was arrived against
the petitioner in the earlier litigation. Therefore, the petitioner
cannot claim possession in respect of the plaint schedule
property. As regards the claim for compensation, the trial court
held that the respondents herein are entitled to get
compensation. The claim made by them at Rs.5,000/- was found
to be low. Since the respondents had claimed only Rs.5,000/- as
compensation, the trial court granted the same.
5. The lower appellate court considered the facts and
circumstances of the case and the documentary evidence and
held that the trial court was right in holding that the petitioner is
not entitled to the injunction prayed for. The appellate court
also found that the order of the trial court granting
compensation under Section 95 of the Code of Civil Procedure,
was legal and proper.
6. In this Writ Petition, the concurrent findings of fact
arrived at by the courts below are under challenge. On a careful
consideration of the order and judgment of the courts below, I
am of the view that the petitioner is not entitled to any relief in
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the interlocutory application filed by her for temporary
injunction. The courts below were justified in dismissing the
application filed by her for temporary injunction. The courts
below were also right in allowing the application filed by the
respondents claiming compensation. No grounds are made out
for interference in the Writ Petition.
Accordingly, the Writ Petition is dismissed.
K.T.SANKARAN,
JUDGE
csl