IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 21938 of 2010(O)
1. KUTHIRAKKAL LATHA, AGED 40 YEARS,
... Petitioner
2. KUTHIRAKKAL LEENA,36 YEARS,CURATOR,
Vs
1. MUTTIL RAJAN,S/O.KUNHIRAMAN,
... Respondent
2. KOYAKKEEL RAMANI,
For Petitioner :SRI.N.N.SUGUNAPALAN (SR.)
For Respondent :SRI.O.V.MANIPRASAD
The Hon'ble MR. Justice K.T.SANKARAN
Dated :31/01/2011
O R D E R
K.T.SANKARAN, J.
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W.P(C).No.21938 OF 2010
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Dated this the 31st day of January, 2011
JUDGMENT
The plaintiffs in O.S.No.16 of 2010 on the file
of the Court of the Munsiff of Payyannur, challenge
the order dated 25.6.2010 in CMA No.27 of 2010 on
the file of the Court of the Subordinate Judge of
Payyannur, by which the court below set aside the
order passed by the trial court in I.A.No.759 of
2010. The trial court was directed to dispose of
I.A.No.170 of 2010 and the suit itself on the merits
untrammeled by any of the observations made by the
appellate court.
2. The suit was filed for declaration of
easement right and injunction in respect of plaint
‘C’ schedule pathway. As per the order dated 8th
April, 2010 in I.A.No.759 of 2010, the trial court
issued an order of interim mandatory injunction
directing the defendants to remove the obstruction
W.P(C).No.21938 OF 2011 2
caused to the plaint C schedule pathway. As per the
order in I.A.No.170 of 2010, an interim order of
injunction was granted in favour of the plaintiffs.
It was alleged by the plaintiffs that obstruction was
caused to the pathway, in violation of the order of
interim injunction.
3. The respondents filed appeal as CMA No.27 of
2010 before the Sub Court, Payyannur challenging the
order passed in I.A.759 of 2010. The CMA was allowed
and directions were issued to the trial court as
mentioned in Paragraph 1 above.
4. After hearing both parties, a learned Single
Judge of this court passed an order on 7th September,
2010 in this Original Petition, which reads as
follows:
“Heard counsel on both sides.
Counsel for respondents asserts and
counsel for petitioners with equal vehemence
denies existence of a way/ridge from the
Palakkode-Kunnaru Road through the property
of respondents on the east of plaint A and BW.P(C).No.21938 OF 2011 3
schedules through which according to
respondents, petitioners could gain access to
the plaint A schedule. Since existence of the
pathway/ridge is asserted and denied, it is
necessary to appoint an Advocate Commissioner
to ascertain that fact so that, if there is
any such way in existence petitioners could
be permitted to use that pathway until
disposal of the suit. In the circumstances,
Advocate Sri.Renjith K.R.is appointed as
Commissioner to inspect the properties and
report with reference to the sketch prepared
by Advocate Commissioner
Sri.V.M.Vijayaraghavan whether any such
pathway/ridge as referred to above exists and
if so, whether that way/ridge could be used
for access to the plaint A schedule from the
public road referred to above. Batta payable
to the Advocate Commissioner is fixed as
Rs.7,500/-(Rupees Seven thousand and five
hundred only). The Batta shall be paid to the
Advocate Commissioner directly and on his
filing receipt warrant of inspection will be
issued. Commissioner shall inspect the
property with notice to counsel on both
sides. Advocate Commissioner shall submit
report within 3 weeks from this day.”
5. A Commissioner appointed by this court who
inspected the property and filed a report and sketch
dated 1st October, 2010.
6. Both sides put forward their respective
arguments on the basis of the aforesaid report and
W.P(C).No.21938 OF 2011 4
sketch as well.
7. It is submitted that the suit is listed for
trial to 1.2.2011.
8. The learned counsel for the petitioners
submitted that in view of the subsequent developments,
and the report submitted by the Commissioner before
this court, it is necessary for the trial court to
take into account those aspects as well. There is no
dispute for the respondents that the report and sketch
submitted by the Commissioner before this court is
also required to be looked into by the trial court.
9. It is also submitted by the counsel for the
petitioners/plaintiffs that some more time is required
for the petitioners to get ready for the trial of the
suit. If the suit is taken up for trial on 1st
February, 2010, great prejudice will be caused to the
parties.
W.P(C).No.21938 OF 2011 5
10. Since the suit is listed for trial, I do not
think it is necessary to decide the Writ Petition on
the merits and to consider whether the order passed by
the court below in the CMA was justified or not. The
lower appellate court also thought it fit that the
suit itself is to be disposed of. Now, in view of the
subsequent developments and also in view of the fact
that the suit is listed for trial to 1.2.2011, I do
not think it is necessary to dispose of this Writ
Petition after considering the legality or propriety
of the judgment passed by the lower appellate court.
It is sufficient if the Writ Petition is disposed of
in the following manner:
a) All the contentions of the parties are
left open to be considered in the suit.
b) The suit shall be disposed of untrammeled
by any of the observations and findings
made by the trial court in I.A.No.759 of
W.P(C).No.21938 OF 2011 6
2010 and the judgment in CMA No.27 of
2010.
c) The report and sketch submitted by the
Commissioner appointed by this court shall
be forwarded to the trial court. The trial
court shall take the same on file.
d) Both parties will be entitled to file
objections to the report submitted by the
Commissioner appointed by this court.
e) The trial court shall adjourn the trial of
the suit for a period of 15 days to enable
the parties to get ready for trial.
The Writ Petition is disposed of as above.
K.T.SANKARAN,
JUDGE.
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