IN THE HIGH COURT OF KERALA AT ERNAKULAM
FAO.No. 275 of 2005()
1. CHEKINTAVIDA MUNAMBATH ABDUL NAZAR,
... Petitioner
2. KERALA ROADWAYS LTD.,
Vs
1. PUTHIYONAN REEJA, W/O.BALARAMAN,
... Respondent
For Petitioner :SRI.K.V.SOHAN
For Respondent :SRI.R.SURENDRAN
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :30/09/2009
O R D E R
M.N. KRISHNAN, J.
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F.A.O. NOS. 275 of 2005, 115 OF 2006
AND C.R.P. 414 OF 2006
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Dated this the 30th day of September, 2009.
J U D G M E N T
FAO 275/05 is preferred against the order passed in
I.A.572/05 in A.S.24/05. It was an application filed by the
plaintiff for injunction against defendants and their men or
their assignees from committing any sort of waste in the
petition schedule property or altering the lie of the land in
any manner or effecting any kind of construction in the
petition schedule property.
2. It is the case of the defendants that after the
dismissal of the suit and before filing of the appeal the
property has been transferred to one Jabbar Haji for valid
consideration and he is in possession and enjoyment of
property. In the counter to the injunction application though
mention is made about the transfer the name of the
transferee is not mentioned. Now it is the definite contention
of the defendants that they are not in possession of the
F.A.O. NOS. 275 of 2005 &
other con. cases -:2:-
property by virtue of the assignment deed. If they are not in
possession of the property the question of they being
restricted to do anything may not have effect and learned
counsel for the appellant had submitted before me they are
not having any intention to commit any waste or
construction of the building, especially in the back drop that
they are not in possession of the property. Learned counsel
for the plaintiff would submit before me that under Or.22
Rule 10 it is optional to implead the assignee and he has
relied upon the decision of the Division Bench of this Court
reported in Cherukutty v. Velappu (1987 (1) KLT 565).
In that decision this Court has held that if the assignee has
confidence in the assignor he may remain in the background
and allow the assignor to continue in the proceedings. The
assignee even if he does not become a party to the suit is
bound by the decision against the assignor who is a party to
the suit. So the out come of the appeal will be binding on
the assignee as well since even if he is not a party to the
proceedings, he cannot take shelter on the ground that he
has not been impleaded as a party. These matters can be
elaborately considered in the appeal and therefore leaving
F.A.O. NOS. 275 of 2005 &
other con. cases -:3:-
open these things to be decided by the appellate court, the
FAO is closed.
3. In FAO 115/06, the attack is against the order in
I.A.2503/05 in A.S.24/05. It was an I.A. filed under O.39
Rule 2-A of Code of Civil Procedure to initiate appropriate
legal action against the defendants and award the maximum
punishment. The Court below after consideration of the
materials found that the properties have been assigned in
favour of Jabbar Haj even at the time of filing of I.A. 572/05.
The Court also found that no steps were taken by the I.A.
petitioner to get a Commissioner appointed. So in the light
of those facts the Court dismissed the order in the petition
for violation of injunction which is perfectly in order and I do
not think any ground to interfere with that decision.
4. C.R.P 414/06 is preferred against the order in
I.A.2669/05 in A.S. 24/05. It is a petition filed by the
advocate for the appellant to issue proper orders directing
the SHO Mattannur to stop all acts of construction, storage of
materials et. in the plaint schedule property. The Court did
not entertain that application mainly on the ground that the
defendants in the suit had raised a very specific contention
F.A.O. NOS. 275 of 2005 &
other con. cases -:4:-
that the property had been transferred in favour of Jabbar
Haji and he is in possession of the property. When such is
the situation there is no point in ordering action against
defendants 1 and 2 and therefore the Court below rightly
dismissed the application which does not call for any
interference.
5. Therefore FAO 275/05 is closed and FAO 115/06
and CRP 414/06 are dismissed. I direct the learned Principal
Subordinate Judge, Thalassery wherein A.S.24/05 is pending
to dispose of the appeal making it very clear that the
observations in this order shall not bind him and he is free to
take a decision on all points including the question that may
come up for consideration under Or.22 Rule 10 of Code of
Civil Procedure.
The Registry is directed to send back the records
immediately.
M.N. KRISHNAN, JUDGE.
ul/-