An appellate court cannot entertain applications related to injunction violations after the main appeals have been disposed of and must refer such applications back to the trial court.

JUDGMENT

The original petition is filed challenging Exts.P12 and P13 orders passed in IA No.628/2019 and IA No.597/2015 in CMA No.5/2015 by the Court of the Subordinate Judge, Thiruvalla. The petitioner is the 1st respondent, the 1st respondent is the appellant and the respondents 2 and 3 are the respondents 2 and 3 before the court below.

2. The relevant antecedent facts leading to Exts.P12 and P13 orders are:

(i) The petitioner is the 1st defendant in OS Nos.704/2014 and 705/2014 of the Court of the Munsiff, Thiruvalla (Trial Court). The suits are filed by the respondents 1 and 3 for declaration, recovery of possession and consequential injunction.

(ii) The petitioner resisted the suits by filing separate written statements.

(iii) The 1st respondent filed IA Nos.3546/2014 and

3548/2014 in the two suits for orders of temporary injunction. But, the applications were dismissed.

(iv) Challenging the common order of dismissal in the two applications, the 1st respondent filed CMA Nos.5/2015 and 6/2015 before the Court of the Subordinate Judge, Thiruvalla (lower Appellate Court).

(v) The court below, by Ext.P8 common judgment, allowed the appeals.

(vi) Aggrieved by Ext.P8 common judgment, the petitioner filed OP(C) No.44/2017 before this Court. But, this Court, by Ext.P9 judgment, confirmed Ext.P8 common judgment.

(vii) The 1st respondent filed IA No.597/2015 (Ext.P10) under Rule 2A of Order 39 of the Code of Civil Procedure , alleging that the petitioner had violated the order of injunction. The petitioner resisted the application by filing Ext.P11 objection.

(viii) The petitioner filed IA No.628/2019 to dismiss IA No.597/2015.

(ix) The court below, by the impugned Exts.P12 and P13 orders held that it has the jurisdiction to consider IA No.597/2015 and dismissed I.A.No.628/2019.

(x) Exts.P12 and P13 orders are erroneous and unsustainable in law. Hence, the original petition.

3. Heard; Sri.Raju Joseph, the learned Counsel appearing for the petitioner and Sri.Haridas, the learned Counsel appearing for the respondents 1 and 3.

4. The short question is whether there is any error in Exts.P12 and P13 orders.

5. On an evaluation of the pleadings and materials on record, it is evident that by Ext.P8 common judgment, the lower Appellate Court allowed the appeals and has granted an order of temporary injunction as prayed for in the two applications filed in the suits.

6. The 1st respondent had filed I.A.No.597/2015 in C.M.A.No.5/2015, alleging that the petitioner had violated the order of temporary injunction. Even though, the lower Appellate Court disposed of the appeals, by the impugned Ext.P13 order, the court below adjourned the application for further consideration by posting the application for evidence.

7. The question whether an appellate court has the jurisdiction to continue with a prosecution application after the appeal is disposed of, is no longer resintegra in the light of the categoric exposition of law by this Court in Sudarsana Pillai R. and another vs.

K.Thulaseedharan Nair and others [2017 (4) KHC

13], wherein a Division Bench has held as follows:

“6. The defendants contended that only 'the Court granting the injunction or making the order, or any Court to which the suit or proceeding is transferred' can deal with an application under R.2A of Order XXXIX of the CPC. We wish to emphasis that a procedural Statute like the CPC should not be construed in a literal sense without understanding the scheme of the Statute. The judgment in OP(C) No.232/2016 modifying the order passed in an application for temporary injunction should be deemed to have been made by the trial Court itself. Such deeming effect is given solely for the purpose of disposal of the application filed alleging violation of injunction under R.2A of Order XXXIX of the CPC. Expediency warrants that the Court where the main proceeding is pending (which in the instant case is the Court of the Munsiff, where the suit is pending) deals with an application of that nature. Similarly the