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Raghavan Nair Vs. Velayudhan Nair - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKerala High Court
Decided On
Case NumberCivil Revn. Petn. No. 61 of 1980-C
Judge
Reported inAIR1981Ker35
ActsCode of Civil Procedure (CPC) , 1908 - Order 39, Rules 1 and 2
AppellantRaghavan Nair
RespondentVelayudhan Nair
Appellant Advocate T.P. Mathai, Adv.
Respondent Advocate V.P. Mohan Kumar and; K.P. Sreekumar, Advs.
DispositionRevision allowed
Cases ReferredAboobucker v. Kunhamoo
Excerpt:
- - it goes without saying that the defendant cannot set a relief like the one prayed for in the interim application when the suit is finally disposed of......aboobucker v. kunhamoo, (air 1958 mad 287). in the above decision it is held :'........an interim relief granted during the pendency of a suit should notbe of greater scope than what could begranted in the suit itself, after the partyhas established his right in the suit tothat relief. in my opinion, that wouldbe a very relevant factor to be takeninto account in deciding whether a courtshould or even could grant such aninterim relief, especially so when theperson against whom the interim injunction is sought is not a party to the suit,and against whom no relief could begranted in the suit itself.' (para 13)in the above decision it is further held: 'under such circumstances, where norelief could be granted to the appellantagainst the respondent in the main suititself, it is not.....
Judgment:
ORDER

K.K. Narendran, J.

1. The short point that arises for consideration is whether a defendant in a suit for injunction can move the Court to auction the right to take yield from the plaint schedule properties pending suit. The plaintiff is the revision petitioner. He filed the suit for a permanent injunction restraining the respondent-defendant from trespassing into the plaint schedule properties and interfering with his possession and enjoyment of the same. The plaintiff got the properties as per a will executed by his father on 13-10-1977. The father died on 11-12-1978 and, according to the plaintiff, thereafter he is in exclusive possession of the properties and is cultivating the same. The defendant who is none other than his brother, attempted to trespass into the properties. So, the suit for injunction was filed. On the plaintiff's application for temporary injunction the trial court ordered to maintain the status quo. The defendant contested the suit. When the suit came up for trial, the defendant filed an interim application praying that the right to take usufructs from items 1 and 3 and the right to harvest the crop in item No. 2 may be auctioned between the parties and the amount deposited in Court. Though the petitioner-plaintiff filed a counter-affidavit opposing the move, the trial court passed the following order:

'This application for sale of the right to take 'Melanubhavam' in plots 1 and 3 and to take the crops in plot No. 2 for this year.

Counter filed. The right to harvest be auctioned among the parties in open court on 1-1-1980. Till then neither party shall harvest.'

2. It is the above order of the trial court that is under challenge in this Civil Revision Petition filed by the plaintiff. The plaintiff-petitioner moved an application for stay of the impugned order. This Court granted a stay on condition that the plaintiff deposits the value of 150 paras of paddy at Rs. 10 per para and allowed the plaintiff to harvest the crops. Admittedly, the suit is one for a permanent injunction and the matter in question in the suit is the plaintiff's possession. In such a suit whether the interim remedy which was prayed for by the defendant before the trial court could be asked for and granted is the question. It goes without saying that the defendant cannot set a relief like the one prayed for in the interim application when the suit is finally disposed of. If the plaintiff establishes his possession, the suit will be decreed. But, if on the other hand, the plaintiff could not establish his possession, the suit will be dismissed. In either case, in the suit the defendant will not get a decree for the mesne profits from the property or for any amount by way of income from the property pending suit. Not only that, an interim relief itself is one granted as an interim measure till the disposal of the suit. So, nothing can be granted by way of interim relief which cannot be ultimately granted when the suit is finally disposed of. The petitioner in the interim application being a defendant in a suit for injunction had no right to file the application in question. The trial court also had no jurisdiction to direct an auction of the right to harvest.

3. In coming to the above conclusion I am fortified by a decision of the Madras High Court in Aboobucker v. Kunhamoo, (AIR 1958 Mad 287). In the above decision it is held :

'........an interim relief granted during the pendency of a suit should notbe of greater scope than what could begranted in the suit itself, after the partyhas established his right in the suit tothat relief. In my opinion, that wouldbe a very relevant factor to be takeninto account in deciding whether a courtshould or even could grant such aninterim relief, especially so when theperson against whom the interim injunction is sought is not a party to the suit,and against whom no relief could begranted in the suit itself.' (Para 13)In the above decision it is further held:

'Under such circumstances, where norelief could be granted to the appellantagainst the respondent in the main suititself, it is not permissible to grant anyinterim relief, to be operative till thedisposal of the suit. Even where it isonly a question of discretion, I shouldhold that in such a case the Courtshould exercise its discretion against thegrant of interim injunction. I would gofurther and hold that the Court has nojurisdiction to grant by way of interimrelief what could never be granted inthe main suit itself.' (Para 18)

4. The order impugned is set aside. It goes without saying that the amount deposited by the petitioner as per the order passed by this Court on 11-1-1980 in C. M. P. No. 363 of 1980 is to be returned to the petitioner. The Civil Revision Petition is allowed. There will be no order as to costs.


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