IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 1875 of 2007(W)
1. VARGHESE PAUL, CHARTERED ACCOUNTANT
... Petitioner
2. M.R.VIJAYAKUMAR, L.I.C. AGENT,
3. PERUMBAVOOR PRAYER PARTNERS FELLOWSHIP,
Vs
1. MANAGING DIRECTOR,
... Respondent
2. MANAGER, KERALA STATE BEVERAGES
3. ASSISTANT EXCISE COMMISSIONER,
4. REJI JACOB, S/O.YACOB, CHENNILATH
5. STHENSILAVOSE, S/O.XAVIER,
For Petitioner :SRI.K.SREESAKUMAR
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :16/01/2007
O R D E R
M.SASIDHARAN NAMBIAR,J.
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W.P.(C)NO.1875 OF 2007
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DATED THIS THE 16th DAY OF JANUARY, 2007
JUDGMENT
Petitioners are plaintiffs in O.S.333/02 on the file of Munsiff
Court, Perumbavoor. Respondents are the defendants. Suit was filed
for permanent prohibitory injunction restraining first respondent from
conducting foreign liquor shop in the plaint schedule property or third
respondent issuing a licence or second respondent to supply foreign
liquor to first respondent. Along with the suit, petitioners filed
I.A.1655/02, an application under Order XXXIX Rule 1 of Code of Civil
procedure for an order of temporary injunction restraining first
respondent from starting the foreign liquor shop or third respondent
issuing licence. Under Ext.P10 order, learned Munsiff granted an order
of temporary injunction. It was challenged before Sub Court, North
Paravur in C.M.A.8/03 and 10/03. As per Ext.P11 common order,
learned Sub Judge allowed the application and vacated the order of
temporary injunction and dismissed the application for temporary
injunction. The order is challenged in this petition filed under Article
227 of Constitution of India.
2. Learned Counsel appearing for petitioners vehemently
W.P.9c)1875/07 2
argued that in the light of report submitted by Commissioner, which
shows that the plaint schedule property is situated within the
prohibited distance from St. Mary’s Church, learned Sub Judge
should not have vacated the order of temporary injunction as the
building is situated within the prohibited area and therefore the
order is to be set aside.
3. Learned Counsel appearing for petitioners was heard.
4. Learned Sub Judge on the basis of Ext.C2(a) and C2(b),
report and sketch found that the disputed plaint schedule property
is situated more than 200 meters from the church and therefore it is
not within the prohibited area.
5. Arguments of learned Counsel appearing for petitioner
was that if the measurements from gate to gate is taken, it is within
the prohibited area and therefore the order is to be set aside.
6. Learned Sub Judge prima facie found that the building is
not situate within the prohibited area. The question whether the
report submitted by Commissioner could be relied on or not is to be
decided by Munsiff on the evidence. In the light of the findings in
Ext.P11, petitioners are not entitled to the order of temporary
injunction sought for. There is no infirmity, illegality or irregularity
in Ext.P11 order warranting interference in exercise of the
extraordinary jurisdiction of this Court under Article 227 of
Constitution of India.
W.P.9c)1875/07 3
Petition is dismissed. Learned Munsiff is directed to dispose
the suit expeditiously untrammeled by any observation in Exts.P10
or P11 orders or this judgment.
M.SASIDHARAN NAMBIAR,JUDGE
Acd