IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP.No. 864 of 2008()
1. M/S.SYNTHITE INDUSTRIAL CHEMICALS LTD.
... Petitioner
Vs
1. V.K.PURUSHAN, S/O.V.S.KRISHNAN, AGED 59
... Respondent
2. V.K.RAVINDRAN, S/O.V.S.KRISHNAN,
3. M.D.MOHANAN, S/O.DAMODARAN, 58 YEARS
For Petitioner :SRI.C.T.JOSEPH
For Respondent :SRI.N.RATHEESH
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :17/02/2010
O R D E R
S.S.SATHEESACHANDRAN, J
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C.R.P No.864 OF 2008
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Dated this the 17th day of February 2010
ORDER
Concurrent decision rendered by two inferior courts
holding the petitioner, a company, engaged in hotel business, is not
entitled to the decretionary relief of injunction is challenged in the
revision invoking the supervisory jurisdiction vested with this court
under Article 227 of the Constitution of India.
2. Petitioner is the plaintiff in O.S No.562 of 2007 on the
file of the Sub Court, Ernakulam. The above suit is one for perpetual
prohibitory injunction to restrain the defendants from trespassing
upon or installing any constructions in the plaint schedule property
or interfering with the possession and enjoyment of the same by the
plaintiff company. Admittedly, the respondents, the defendants in
the above suit, have filed another suit as O.S No.763 of 2007
seeking a decree of injunction against the defendant therein, the
present petitioner company. That suit, filed as O.S No.763 of 2007
on the file of the Munsiff Court, Ernakulam, was transferred later to
the Sub court, Ernakulam and renumbered as O.S No.784 of 2007
on the orders passed in a transfer petition filed before the District
Court, Ernakulam. Both the suits are now being jointly considered
by the learned Sub Judge, Ernakulam. An application moved by the
petitioner company seeking an equitable relief identical to the relief
C.R.P No.864 OF 2008 Page numbers
canvassed in his suit, after hearing both sides, was dismissed by
the learned Sub Judge. Challenge against the dismissal of that
application for injunction before the District Court, Ernakulam was
also turned down by the District Judge. Revision is against the
dismissal of the application for injunction which was confirmed by
the District Judge in appeal.
3. The petitioner company, at the time of institution of
the suit was constructing a five star hotel in the property described
in the plaint. The learned counsel for the petitioner submits that
the construction is practically over and the hotel has already started
functioning. Being a five star hotel constructed beside the
Kumbalam lake, two floatels have been put up in the river after
obtaining license from the concerned authorities. The case of the
petitioner company in short is that the respondents claiming to be
traditional fishermen, which is disputed by the plaintiff, with intend
to coerce the company to meet their unlawful demands, are bent
upon causing obstruction to the smooth functioning of the hotel.
Plaintiff company alleged that in order to cause obstruction to its
business activities, they made attempts to put up some
constructions beside the floatels close to the plaint schedule
property under the guise of putting up China nets for fishing, which
is claimed as their vocation for livelihood as fishermen. On the
other hand, the respondents contended that they are traditional
C.R.P No.864 OF 2008 Page numbers
fishermen who earn their livelihood by fishing engaging in
connected activities of their vocation as fishermen. The
constructions for fixing China nets has been in existence at the site
close to the plaint property from decades before and they have
been making use of it for the purpose of fishing was the case
canvassed by the respondents. Both sides produced documentary
evidence to substantiate their respective case. An advocate
commissioner deputed by the court after conducting inspection also
filed a report. The learned Munsiff after examining the materials
produced and hearing the counsel on both sides was inclined to
hold that the contentions raised by the defendants that they are
traditional workmen and they have been using the constructions
which are found close to the plaint property for putting up China
nets prima facie tenable. In that view of the matter, the
discretionary relief claimed by the plaintiff company for orders of
injunction against the defendants was declined. On reappreciation
of the materials produced and hearing the counsel as well, the
Appellate court concurring with the view taken by the learned
Munsiff confirmed the dismissal of the application for injunction.
4. I heard the counsel. Perusing the impugned
order/judgment passed by the two inferior courts with reference to
the submissions made, I find no interference in exercise of the
revisional jurisdiction is called for. This court will be justified in
C.R.P No.864 OF 2008 Page numbers
interfering with the order/judgment only if it is shown that the
orders of the court below suffered from such jurisdictional infirmity,
which if not corrected is likely to result in miscarriage of justice. On
the materials placed, both the courts have came to the conclusion
that the plaintiff company is not entitled to the discretional relief of
injunction canvassed for. The case set up by the defendants that
they are traditional fishermen eaking their livelihood by fishing
appeared to be more probable to the courts below. Needless to
point out, the views and observations made by both the courts are
tentative subject to final decision to be taken in the suit after
affording reasonable opportunity to both sides to lead evidence in
the case. I direct the learned Sub Judge to have an expeditious trial
of both suits untrammelled by any of the observations made in its
order or the judgment rendered by the appellate court. Considering
the fact that the petitioner company has already started a five star
hotel in the plaint schedule property, every endeavour has to be
made to dispose both the suits as expeditiously as possible, but,
after providing reasonable opportunity to both sides to lead
evidence in support of their respective case. Subject to the above
observations, the revision is closed.
Sd/-
S.S.SATHEESACHANDRAN
JUDGE
//TRUE COPY//
vdv P.A TO JUDGE