IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 30659 of 2008(Y)
1. AVATHUKATTIL ABDULLA
... Petitioner
Vs
1. MUTHODAN HASSAN
... Respondent
For Petitioner :SRI.JOSEPH SEBASTIAN PURAYIDAM
For Respondent : No Appearance
The Hon'ble MR. Justice V.RAMKUMAR
Dated :17/10/2008
O R D E R
V. RAMKUMAR , J.
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W.P.(C) No. 30659 of 2008
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Dated this the 17th day of October, 2008.
JUDGMENT
The petitioners who are the plaintiffs in O.S. No. 136 of 2008 on
the file of the Munsiff’s Court, Perinthalmanna, seek a temporary
injunction as prayed for in Ext.P2 interlocutory application filed before
the court below till the court below passes orders on Ext.P2 application
filed as I.A. No. 822 of 2008. The injunction prayed for is against the
installation of a transmission tower by the third defendant in the plaint
A schedule property which is the property adjacent to the property of
the petitioners/plaintiffs. According to the plaintiffs, if the tower is
installed, it will detrimentally affect the interests of the plaintiffs. The
petitioners would have it that the learned Munsiff ought to have
granted an ad interim order of injunction in I.A. No. 822 of 2008. But,
that court has only ordered notice. Hence this writ petition.
2. The grievance of the petitioners is not that the third
defendant is intending to trespass upon the property of the petitioners
for the purpose of installing the tele communication tower. Their
grievance is really that if a tele communication is installed in the
neighbouring property, it will detrimentally affect the
petitioners/plaintiffs. That is a matter to be considered after hearing
W.P.(C) No. 30659/2008 : 2:
the respondents as well. That was precisely why the learned Munsiff
was only inclined to order notice on Ext.P2 application filed as I.A. No.
822 of 2008. After the amendment of Order 39 C.P.C., the normal
rule is to order notice to the opposite party and granting of an ad
interim order of injunction is an exception and will be justified only in
case the court is of the view that the object of granting injunction will
be defeated by delay. Even before the amendment of C.P.C., this
Court had taken the same view (vide R.T.O v/s. N.V. Motor Service –
1973 KLJ 608). Hence, I see no reason to interfere with the discretion
exercised by the learned Munsiff in ordering notice instead of granting
an ex parte order of injunction. It is up to the learned Munsiff to
consider the pros and corns after hearing the parties and then decide
whether an interim injunction as prayed for is to be granted or not.
This writ petition is accordingly dismissed.
Dated this the 17th day of October, 2008.
V. RAMKUMAR, JUDGE.
rv
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