IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 17688 of 2008(E)
1. FAOUSIA, 41 YEARS, W/O.K.V.BAVA,
... Petitioner
2. C.P.AYISHA, 47 YEARS,
Vs
1. SULAIKHA BEEVI, 59 YEARS,
... Respondent
2. VAFA, 34 YEARS, W/O.NAZEER AHMED,
3. NAZEER AHMED, 40 YEARS,
4. MUHAMMED BARAMI, 39 YEARS,
For Petitioner :SRI.P.CHANDRASEKHAR
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :16/06/2008
O R D E R
M.SASIDHARAN NAMBIAR, J.
...........................................
WP(C).No. 17688 OF 2008
............................................
DATED THIS THE 16th DAY OF JUNE, 2008
JUDGMENT
Petitioners are the plaintiffs in O.S.132 of 2008 on the file
of Sub Court, Kozhikode. I.A.992 of 2008 was filed under Order
XXXIX Rule 1 of Code of Civil Procedure, for an order of
temporary injunction. I.A.1308 of 2008 was filed by respondents
1 and 2, seeking permission to put up a gate. Under Ext.P6
common order dated 11.4.2008, learned Sub Judge dismissed the
application filed under Order XXXIX Rule 1 of the Code of Civil
Procedure and allowed I.A.1308 of 2008. The order dismissing
the application under Order XXXIX Rule 1 of the Code, being an
appealable order, is challenged before District Court, Kozhikode
in CMA 29 of 2008. Since no appeal will lie as against an order
in an application filed under Section 151 of Code of Civil
Procedure, this petition is filed under Article 227 of Constitution
of India.
2. The crucial question is whether petitioners are entitled
to the order of injunction in I.A.992 of 2008. Respondents 1 and
2 could be permitted to put up a gate as sought for in I.A.1308 of
2008, only if petitioners are not entitled to the order for
WP(C) 17688/2008 2
injunction sought for in I.A.992 of 2008. As both petitions were
disposed by a common order and against the main order
refusing the order of temporary injunction, CMA 29 of 2008
filed by petitioners is pending before District Court, petitioners
are to be permitted to challenge the order in I.A.1308 of 2008
also in the CMA.
The writ petition is disposed, granting liberty to petitioners
to challenge the order in I.A.1308 of 2008, along with the order
in I.A.992 of 2008. Learned District Judge has to consider the
correctness of both the orders in I.A.992 of 2008 and I.A.1308 of
2008 in the pending appeal.
M.SASIDHARAN NAMBIAR, JUDGE
lgk/-