The petitioners Should get an Opportunity to Urge their Contentions and the Court is Duty Bound to heard the Matter: High Court of Kerala.
The petitioners should get an opportunity to urge their contentions based on the additional documents produced and the matter to be heard by the respective court. The honorable judgement was passed by High Court of Kerala in the case of M. Shahudeen and Samuelkutty v. Kerala Vyapari Vyavasai Ekopana Samithi [OP(C). No .383 OF 2020] by The Honorable Mr. Justice T.V. Anil Kumar. Petitioners in this original petition were defendant Nos.1 and 2 in O.S.No.331/2019. An order of temporary injunction was passed by the court of first instance restraining the petitioners from entering into plaint property and causing obstruction to possession and enjoyment of plaintiffs. Being aggrieved by the order, C.M.A.No.25/2019 was filed by the petitioners. It was dismissed confirming the order passed by the trial court. The concurrent order of temporary injunction passed by the both courts below are challenged in this original petition. When the matter came up for hearing, the learned counsel for the petitioners pointed out that the appellate court happened to agree with the trial court’s view only because additional documents produced in appeal by him were overlooked by that court. Had those documents also been considered it is contended, a different view would have been taken by the appellate court. The learned counsel for the respondents, on the other hand, submitted that those documents are not admissible in evidence and even if they are taken into account also, the order granting temporary injunction passed by the court of first instance would only have been upheld. The court opinioned that, “it doesn’t want to express any opinion on merits of the contentions raised by the parties on either side, and is of the opinion that the petitioners should get an opportunity to urge their contentions based on the additional documents produced in C.M.A.No.25/2019 and the matter to be heard. Having heard the submissions made on behalf of the parties, court do not intend to interfere with the concurrent orders passed by the both courts below.”
IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR FRIDAY THE 26TH DAY OF MARCH 2021 5TH CHAITHRA 1943 OP(C).No.383 OF 2020 AGAINST THE ORDER DATED 29 10 2019 IN C.M.A.NO.25 2019 OF SUB COURT KOTTARAKKARA AGAINST THE ORDER IN I.A.NO.1597 2019 IN O.S. NO.331 2019 OF MUNSIFF COURT KOTTARAKKARA PETITIONER APPELLANTS 1 AND 2 DEFENDANTS 1 AND 2 AGED 85 YEARS BANGLAVIL MUSLIM STREET PADINJATTINKARA MURI KOTTARAKKARA VILLAGE KOTTARAKKARA AGED 70 YEARS SAM VILLA KIZHAKKEKKARA MURI KOTTARAKKARA VILLAGE KOTTARAKKARA SRI.S.NIDHEESH KERALA VYAPARI VYAVASAI EKOPANA SAMITHI REG. NO.262 81 KOTTARAKKARA UNIT VYAPARA BHAVAN KOTTARAKKARA KOTTARAKKARA VILLAGE 691506 C. L. JOHN PRESIDENT KERALA VYAPARI VYAVASAI EKOPANA SAMITHI KOTTARAKKARA UNIT DOING BUSINESS AS ARADHANA TRONIX PULAMON KOTTARAKKARA RESIDING AT ARADHANA KIZHAKKETHERUVU P. O. KOTTARAKKARA 691 506 N. RAMACHANDRAN NAIR GENERAL SECRETARY KERALA VYAPARI VYAVASAI EKOPANA SAMITHI KOTTARAKKARA UNIT DOING BUSINESS AS MOHAN DIGITAL STUDIO HOSPITAL JUNCTION KOTTARAKKARA RESIDING AT VALLAMKULATHUMADAM PADINJATTINKARA MURI KOTTARAKKARA VILLAGE 691 506 :2: P. K. VIJAYAKUMAR TREASURER KERALA VYAPARI VYAVASAI EKOPANA SAMITHI KOTTARAKKARA UNIT DOING BUSINESS AT KARTHIKA COLOUR CENTRE RAILWAY STATION JUNCTION KOTTARAKKARA RESIDING AT SREELAKSHMI PADINJATTINKARA KOTTARAKKARA 691 506 R1 4 BY ADVS. SRI.R.GIREESH VARMA SRI.V.K.NANDAKUMARAN THIS OP HAVING BEEN FINALLY HEARD ON 26.03.2021 THE COURT ON THE SAME DAY DELIVERED THE :3: Dated this the 26th day of March 2021 JUDGMENT Petitioners in this original petition are defendant Nos.1 and 2 in O.S.No.331 2019. An order of temporary injunction was passed by the court of first instance restraining the petitioners from entering into plaint property and causing obstruction to possession and enjoyment of Being aggrieved by the order C.M.A.No.25 2019 was filed by the petitioners. It was dismissed confirming the order passed by the trial court. The concurrent order of temporary injunction passed by the both courts below are challenged in this original petition When the matter came up for hearing the learned counsel for the petitioners pointed out that the appellate court happened to agree with the trial court s view only because additional documents produced in appeal by him were overlooked by that court. Had those documents also been considered it is contended a different view would have been taken by the appellate court :4: The learned counsel for the respondents on the other hand submitted that those documents are not admissible in evidence and even if they are taken into account also the order granting temporary injunction passed by the court of first instance would only have been upheld. I do not want to express any opinion on merits of the contentions raised by the parties on either side I am of the opinion that the petitioners should get an opportunity to urge their contentions based on the additional documents produced in C.M.A.No.25 2019 and the matter to be heard Having heard the submissions made on behalf of the parties I do not intend to interfere with the concurrent orders passed by the both courts below. While allowing the impugned orders to sustain I am of the opinion that Sub Court Kottarakkara has to have a re look into the issues raised in I.A.No.1597 2019 and decide the matter afresh after hearing parties In the result this original petition is disposed of calling upon Sub Court Kottarakkara to reconsider I.A.No.1597 2019 after hearing :5: parties in accordance with law within a period of three months from the date of production of certified copy of this judgment. The court below may give parties on both sides opportunity to produce documents on their side and it may decide the issues on hand untrammelled by the observations made in C.M.A.No.25 2019. It is further made clear that it will be open to the parties to urge before the court below that the suit itself may be disposed of provided it is ripe All pending interlocutory applications will P.A.To Judge PETITIONERS EXHIBITS :6: TRUE COPY OF THE PLAINT IN O.S.NO.331 2019 ON THE FILE OF MUNSIFF COURT KOTTARAKKARA TRUE COPY OF THE OBJECTION DATED 4.7.2019 FILED BY THE DEFENDANTS PETITIONERS HEREIN) IN O.S.331 2019 IN TRUE COPY OF THE ORDER OF THE LEARNED MUNSIFF S COURT IN I.A.1597 2019 IN O.S.331 2019 DATED 17.7.2019 TRUE COPY OF THE ORDER OF THE SUB COURT IN C.M.APPEAL 25 2019 DATED 29.10.2019 TRUE COPY OF THE BYE LAW OF THE KERALA VYAPARI VYAVASAI EKOPANA SAMITHI TRUE COPY OF THE MINUTES OF THE RESPONDENT SAMITHI DATED 3.3.2019 TRUE COPY OF THE LETTER DATED 15.11.2017 ISSUED TO THE DISTRICT PRESIDENT KERALA VYAPARI VYAVASAI TRUE COPY OF THE LETTER OF THE DISTRICT COMMITTEE DATED 18.11.2017 TRUE COPY OF THE NOTICE OF ELECTION TRUE COPY OF THE MINUTES OF THE MEETING TRUE COPY OF THE RELEVANT PORTION OF THE MINUTES DATED 4.4.2018 PAGES 154 156 TRUE COPY OF THE LETTER OF REQUEST DATED 5.4.2018 BY THE KOTTARAKKARA UNIT OF VYAPARI VYAVASAI EKOPANA SAMITHI TO THE DISTRICT COMMITTEE :7: TRUE COPY OF THE LETTER DATED 5.5.2018 OF THE DISTRICT COMMITTEE KOLLAM OF VYAPARI VYAVASAI EKOPANA SAMITHI TRUE COPY OF THE REPORT OF THE COMMISSIONER IN O.S.331 2019 IN I.A.NO.1646 2019 DATED 29.6.2019 RESPONDENTS EXHIBITS: NIL