IN THE HIGH COURT OF KERALA AT ERNAKULAM
FAO.No. 82 of 2006()
1. MAKKIMALA TEA ESTATES (P) LTD.,
... Petitioner
2. K. RAMARAJ, S/O. LATE KALI CHETTIAR,
3. R. VENUGOPAL, S/O. K.RAMARAJ,
4. V.K. SUNDARAM, AGED 43 YEARS,
Vs
1. K.M. IBRAHIM, AGED ABOUT 60 YEARS,
... Respondent
2. NAFEESA IBRAHIM, W/O. K.M. IBRAHIM,
3. K.I. SHERIFF,
4. K.I. ABDULRAHMAN, C/O.K.M. IBRAHIM,
For Petitioner :SRI.V.PHILIP MATHEW
For Respondent :K.P.DANDAPANI (CAVEATOR0)
The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :04/07/2008
O R D E R
P.R.RAMAN &
T.R.RAMACHANDRAN NAIR,JJ.
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F.A.O.NOS.82 & 220 OF 2006
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Dated this the 4th day of July, 2008
JUDGMENT
Raman,J.
Both the above appeals arise out of a common order passed in
I.A.Nos.50/2003 and 55/2003 in Indigent O.P. No.32/2002 on the file
of the Sub Court, Sulthan Bathery. Appellants are petitioners 1, 2, 4
and 6 and plaintiffs 1, 2, 4 and 6 in the court below. Suit was
instituted as an indigent person. By the present application plaintiffs
sought for an injunction as also for appointment of a Receiver. Suit is
one for declaration. By the impugned order both these applications
were dismissed, against which the present appeals are preferred.
2. I.A.No.50/2003 is filed for a temporary injunction against
cutting of trees, committing waste and alienation. I.A.No.55/2003 is
filed for appointment of a Receiver. It is alleged that knowing about
the filing of the indigent O.P. respondents 1, 3 and 4 have physically
entered the estate and frantically trying to dispose off the land by
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FAO.Nos82 & 220/2006.
sale or share transfer, since they are in possession of the entire share
certificates which they had obtained by cheating and breach of trust
and even theft against the wishes of the rightful owners. It is also
alleged that the lst respondent has cut down large number of jack
trees from the plaint schedule property. These were however denied
in the counter affidavit filed by the respondents. The court below
found that the allegation against the respondents is that they have
forged the minutes book with the aid of one Madhavan, an employee
of the plaintiff Company. But no witness was examined. The
allegation of fraud was thus not proved. There is a finding that the
plaintiffs have no locus standi to file the suit representing the
company’s Managing Director and other Directors. During the
relevant time, it is the respondents who are the Managing Director
and Directors. Therefore, since the petitioners have not proved a
prima facie case and the balance of convenience is in favour of the
respondents, the court below was satisfied that no order of injunction
could be issued against the defendants/respondents nor a Receiver
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FAO.Nos82 & 220/2006.
could be appointed. The appellants would contend that the court
below was not right in law and stating that even when an affidavit is
filed, the averments contained therein cannot be accepted, merely for
the reason that the person who sworn into the affidavit, was not
examined. We find some force in this contention. If the averments
made in the affidavit are denied in the counter affidavit filed, then if
after consideration, it is not possible to come to a definite conclusion,
certainly, the person has to establish the fact by adducing other
evidence in the case. In this case the court below prima facie found
that the defendants are Managing Director and Directors of the
Company and therefore no order of injunction could be issued
against them and for that reason also no Receiver could be appointed.
The question as to whether respondents are appointed as Directors of
the Company in accordance with law on which a final pronouncing
cannot be made at this stage. At any rate, this being an interim order,
these are all matters to be considered in the suit based on the evidence
to be adduced by the parties. But we find that the impugned orders
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FAO.Nos82 & 220/2006.
were passed as early as in 2005 and the appeals were admitted in
2006. But no interim order as such was passed. Therefore, status quo
as on the date of passing of the order by the court below continues for
the past three years. Therefore, we do not think it is appropriate to
effect changes in the status quo as on today by interfering with the
order impugned. In the factual situation it is appropriate that the suit
itself be disposed of at an early date. Therefore, we direct the court
below to dispose of the suit, as expeditiously as possible, at any rate
within a period of six months.
Both the appeals are dismissed subject to what is stated above.
P.R.RAMAN,
Judge.
T.R.RAMACHANDRAN NAIR,
Judge.
kcv.