IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 23399 of 2007(I)
1. GEORGE, AGED 55 YEARS, S/O.CHACKO,
... Petitioner
Vs
1. M/S.SHANYA DEVELOPERS & REALTORS (P)LTD.
... Respondent
2. FR.ANDREWS CHALIL, AGED 68 YEARS,
For Petitioner :SRI.JIMMY JOHN VELLANIKARAN
For Respondent :SRI.DENY JOSEPH
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :03/06/2009
O R D E R
S. Siri Jagan, J.
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W. P (C) No. 23399 of 2007
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Dated this, the 3rd June, 2009.
J U D G M E N T
The petitioner is one of the defendants in O.S.No. 723/2006
before the Sub Court, Ernakulam. The same was filed by the 1st
respondent for a declaration that Exts. P1 to P3 agreements executed
between the parties are still in force and for an injunction against the
defendants from interfering with the construction activities permitted
by the agreements. Originally, the Sub Court dismissed the
application for interim injunction in I.A.No. 8168/2006. Against that,
the 1st respondent filed C.M.A. No. 46/2006, which was allowed and
an interim injunction was granted. The petitioner is challenging that
order in this writ petition. According to the petitioner, if the
injunction is allowed to stand, it would cause irreparable injury to the
petitioner in so far as any construction made by the 1st respondent in
the property would be useless to the petitioner and for removing the
same, the petitioner and other defendants have to incur further
expenses.
2. I have heard learned counsel for the respondents also.
3. The impugned order is only an interim order. All what it
does is to injunct the petitioner from interfering with the activities
permitted by Exts. P1 to P3 in the plaint schedule properties. If,
during the pendency of the suit, any construction is made, naturally, if
the suit is ultimately dismissed, the 1st respondent is duty bound to
remove the same. I am not satisfied that there is any infirmity in that
order. The petitioner is also not in any way prejudiced by the same.
However, there must be some safeguard to ensure that if the suit is
dismissed, the 1st respondent would remove the constructions made
on the strength of the interim order. Therefore, this writ petition is
W.P.C. No. 23399/2007 -: 2 :-
disposed of making it clear that if, ultimately, the suit is dismissed,
the 1st respondent would be liable to remove any construction made in
the property during the pendency of the suit and if the 1st respondent
do not do so, the cost for doing the same can be realised from the 1st
respondent by the defendants in the suit. There would be a direction
to the Sub Court, Ernakulam to make that also a condition in the
decree, if the suit is ultimately dismissed.
Sd/- S. Siri Jagan, Judge.
Tds/