Dr.Devadas vs Sreeja

A. Badharudeen, J

O.P(C).No.487 of 2022 is an Original Petition filed by the plaintiff in O.S.No.15/2021 pending before the Sub Court, Cherthala, seeking direction to the Sub Court to hear and dispose of Ext.P2 (I.A.No.1/2021) and Ext.P5 (I.A.No.6/2022) injunction applications. The respondents in this Original Petition are the defendants in the above Suit. Meanwhile, the 1st defendant in the Suit filed O.P(C).No.608/2022 seeking direction to the Sub Court to dispose of I.A.No.8/2022 in O.S.No.15/2021, within a time schedule fixed by this Court and also to direct the Sub Court to dispose of I.A.No.1/2021 and I.A.No.6/2022 only after filing expert commission report, as sought for in I.A.No.8/2022.

Heard both sides in detail.

Advocate T.K.Saidalikutty, appearing for the petitioner, zealously argued that the plaintiff filed the Suit for getting the arrears of licence fee and for recovery of plaint schedule property alleged to be occupied by the 1st defendant on the strength of a licence deed, for mandatory injunction to dismantle and remove the structure erected by the 1st defendant in the property, etc. Along with the Suit, I.A.No.1/2021 was filed seeking interim injunction restraining the defendant or her men from doing any business in the plaint schedule item. Later I.A.No.6/2022 also filed seeking interim injunction restraining the defendants from constructing temporary or permanent compound wall, or fence or any new structures in the petition schedule property. But the learned Sub Judge not cared to consider the interim injunction applications and thereby the 1st defendant has been attempting to make unlawful construction against the licence deed, whereby the defendants are bound to vacate the premises, acted upon by the parties. Therefore, urgent hearing of both I.As is necessary.

The learned Advocate J.Om Prakash, who appeared for the 1st defendant, zealously opposed this contention and he would urge that I.A.No.8/2022 was filed by the 1st defendant on 15.03.2022 to ascertain certain details regarding the nature of constructions made in the plaint schedule property with the assistance of an expert and the 1st respondent asserts right of irrecoverable licence in respect of the property. Therefore, he would submit that before hearing the injunction applications filed by the plaintiff, report as sought for in I.A.No.8/2022 also to be obtained and the hearing of the above petitions shall be deferred till the hearing of I.A.No.8/2022.

Here, evidently and admittedly, O.S.No.15/2021 was filed on 05.08.2021. I.A.No.1/2021 was also filed on the same date. Ext.P5 application (I.A.No.6/2022) was filed on 27.01.2022. Since the Sub Judge not cared to dispose of the above petitions seeking urgent reliefs, though it is mandatory for the Sub Judge to decide the same without delay, the plaintiff approached this Court and filed O.P(C).No.487/2022 on 09.03.2022. Notice was ordered. On knowing the filing of O.P(C).No.487/2022, the 1st defendant filed I.A.No.8/2022 on 15.03.2022 in O.S.No.15/2021 and O.P(C).No.608/2022 was filed thereafter. It is not in dispute that in O.P(C).No.487/2022, early disposal of 2 injunction applications, filed on 05.08.2021 and 27.01.2022, is sought for. Whereas the 1st defendant filed O.P(C).No.608/2022, thereby she sought to dispose of I.A.No.8/2022 and to defer the hearing of the injunction applications till filing of the commission report as sought for in I.A.No.8/2022. The applications and the prayers in I.A.No.8/2021 would go to show that the matters, sought to be ascertained with the assistance of an expert and the same will take some time. Therefore, allowing the prayer sought for by the 1st defendant to defer hearing of I.A.Nos.1/2021 and 6/2022 would definitely be harmful to the plaintiff to protect his interest, if any, legally entitled. Therefore, the prayer in O.P(C).No.608/2022 as such cannot be allowed. Whereas the prayers in O.P(C).No.487/2022 are liable to be allowed, in the interest of justice.

Before considering the prayers, report given by the learned Sub Judge dated 15.03.2022 placed in the case records also to be perused. The learned Sub Judge sought one month's time from 18.05.2022 to dispose of I.A.No.1/2021 and I.A.No.6/2022.

The attitude of the Sub Judge cannot either be accepted or encouraged. When the plaintiff wants to hear 2 urgent petitions, the Sub Judge is duty bound to hear it without much delay and any reluctance in disposing of those petitions is of seriousness consequences. Therefore, I direct the learned Sub Judge to dispose of I.A.No.1/2021 and I.A.No.6/2021 (Exts.P2 and P5 respectively in O.P(C).No.487/2021, before close of summer vacation.

Coming to O.P(C).No.608/2022, the same also is allowed in part. Thereby the learned Sub Judge is directed to dispose of I.A.No.8/2022 also on merits, before close of summer vacation. However, I.A.No.1/21 and I.A.No.6/2022 shall be disposed of without waiting for the commission report sought for in I.A.No.8/2022.

Having appraised the nature of the contentions raised in tune with the arguments advanced, the 1st respondent in O.P(C).No. 487/2022 and her men are restrained from making any sort of constructions, either temporary or permanent, in excess of what has been reported in the initial commission report filed in the case, till the disposal of I.A.No.1/2021 and I.A.No.6/2022.

Registry is directed to forward a copy of this judgment today itself by e-mail, for compliance.