IN THE HIGH COURT OF KERALA AT ERNAKULAM
RP.No. 519 of 2010(O)
1. ABDUL SHAJAR, S/O.ASHRAF,
... Petitioner
Vs
1. ABDUL SALAM, S/O.ABDUL MAJEED,
... Respondent
For Petitioner :SRI.M.R.RAJESH
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :21/06/2010
O R D E R
THOMAS P JOSEPH, J.
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R.P.No.519 of 2010
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Dated this 21st day of June, 2010
ORDER
This application for review is filed by the petitioner in
W.P.C.No.12952 of 2010 which was disposed of by me after
hearing both sides on 17-05-2010. The dispute concerned
possession of a shoproom. Petitioner filed O.S.No.63 of 2010
claiming to be in possession of the said room while respondent filed
O.S.No.72 of 2010 claiming that he has been in possession and
enjoyment of the said room, doing business therein for about 18
years. Both sides applied for temporary injunction in the way it
suited them vide I.A.Nos.403 of 2010 and 453 of 2010 in their
respective suits. Learned Munsiff after hearing both sides directed
parties as per order dated 29-03-2010 to maintain status quo.
Petitioner was also prevented from inducting third parties into
possession of the property. Advocate Commissioner appointed in
the case inspected shoproom and submitted his report which stated
that since the shoproom was locked at the time of his visit, he did
not open it for inspection. Thereafter respondent filed application
to depute the Commissioner to inspect the room again. On that
application there was an order passed by the learned Munsiff
directing the Commissioner to open the shoproom, inspect the
same and return the key to the court. This court while deciding the
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writ petition issued certain directions as regards the order passed
by learned Munsiff appointing the Commissioner. The direction
was that petitioner shall handover key of the shoproom to the
Advocate Commissioner for inspection and after such inspection,
Commissioner shall handover the key to the petitioner. It was also
directed, considering the apprehension raised by learned counsel
for respondent that petitioner shall file an affidavit in the trial court
within three days from the date of the order undertaking that he
shall not remove any of the articles that may found in the shoproom
and as may be reported by the Advocate Commissioner and that he
shall maintain status quo awaiting orders of the learned Munsiff on
applications for injunction filed by the parties (Exts.P2 and P6 in
the writ petition). It was directed that until learned Munsiff passed
orders on the said applications, petitioner shall not hand over
possession of the shoproom to any other person or himself do any
act or business in the shoproom. This court also made it clear that
the said directions are issued in respect of the order dated 05-04-
2010 on Ext.P9, application for the issue of Advocate
Commissioner. Since learned Munsiff had directed in the
applications for injunction that enquiry on the said applications is
necessary, I directed learned Munsiff to dispose of the said
applications within a month from the date of receipt of copy of
judgment.
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2. Grievance of petitioner is that writ petition came up for
hearing and it was disposed of by this court on 17-05-2010 but on
the same day, petitioner had challenged order of status quo on
Exts.P2 and P6 applications before the learned Sub Judge under
Order 43 Rule 1(r) of the Code of Civil Procedure (for short, “the
Code”) and that learned Sub Judge after hearing both sides passed
an order of stay. Learned counsel was not aware of filing of the
C.M appeals against the order of status quo before the learned Sub
Judge and hence learned counsel was not able to make a mention of
that in this court. The apprehension of learned counsel is that
notwithstanding the stay granted by learned Sub Judge on the
order of status quo learned Munsiff is constrained to dispose of
Exts.P2 and P6 applications within one month as directed by this
court in the judgment dated 17-05-2010. That puts learned Munsiff
in a difficult situation and petitioner also is affected on account of
the direction issued by this court. He therefore seeks a review of
the judgment of this court to the extent it concerned direction to
the learned Munsiff to dispose of Exts.P2 and P6 applications (in
the writ petition) within one month from the day of receipt of the
judgment. According to learned counsel since the fact of filing of
the C.M appeals was not brought to the notice of this court it is
within the power of this court to order a review. Learned counsel
for respondent in response contended that there is nothing
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required to review the judgment dated 17-05-2010 passed after
hearing both sides. It is also the contention of learned counsel that
when the applications for stay in the C.M appeals came up for
hearing on 19-05-2010 fact of this court disposing the writ petition
on 17-05-2010 was not brought to the notice of learned Sub Judge
by the petitioner. Immediately thereafter respondent filed an
application before the learned Sub Judge producing a copy of
judgment of this court dated 17-05-2010 and after considering the
said judgment, learned Sub Judge has passed the following order
“The order of stay in I.A.No.866 of 2010
would not effect in any way the disposal of
I.A.No.403 of 2010 by the court below as per
the judgment of honourable High Court in
W.P.C.No.12952 of 2010.”
According to the learned counsel, C.M appeals were preferred only
after this court passed judgment om 17-05-2010 and with the sole
object of defeating the direction contained in the judgment to the
learned Munsiff to dispose of Exts.P2 and P6 applications.
According to the learned counsel, if the enquiry on the said
application is not conducted at the earliest and the applications are
disposed of immediately respondent will be put to much difficulties
and inconvenience.
3. Grievance of petitioner is that the fact of filing of C.M
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appeals on I.A.Nos.403 and 453 of 2010 could not be brought to the
notice of this court while disposing of the writ petition on that day.
I must bear in mind that in the writ petition what was considered
was only the order passed by learned Munsiff on Ext.P9,
application for the issue of commission directing Advocate
Commissioner to return the key of disputed room to the court
which according to the petitioner affected the order of status quo
passed by learned Munsiff. It is while considering the said order
that this court issued certain directions as contained in the
judgment sought to be reviewed. This court made it clear that
directions are issued in the writ petition which concerned order
dated 05-04-2010 on Ext.P9, application for the issue of a
commission. In other words, this court was not dealing with
correctness or otherwise of the order of status quo passed on
Exts.P2 and P6, applications. The judgment of this court cannot
and shall not affect right of aggrieved parties to prefer to challenge
the order of status quo passed on Exts.P2 and P6 applications (in
the writ petition). I make it clear that the judgment of this court
will not in any way affect right of the parties to prefer to challenge
the order of status quo passed on Exts.P2 and P6 applications or to
the maintainability of the appeals if already filed challenging the
said order.
4. So far as direction for disposal of Exts.P2 and P6
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applications within the time frame stated by this court is
concerned, it is made clear that the said directions will be subject
to the direction or order of the court hearing the C.M appeals. It
will be open to the parties to seek appropriate direction regarding
disposal of Exts.P2 and P6 applications from the learned Sub Judge
who is dealing with the C.M appeals. I make it clear, to allay the
apprehensions of both sides that this court does not intend to mean
that the applications, Exts.P2 and P6 need not be disposed of
expeditiously. The enquiry if any to be conducted on the said
applications will be as the court dealing with the C.M appeals may
direct. Learned Munsiff shall dispose of the applications as
ordered or as may be ordered by the learned Sub Judge in the C.M
appeals.
Petition is disposed of as above.
(THOMAS P JOSEPH, JUDGE)
Sbna/-