IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 32102 of 2006(V)
1. DR.K.P.SHYAMALA, D/O.MEENAKSHI AMMA,
... Petitioner
2. DR.M.MUKUNDAN NANBIR,
Vs
1. ACHIMOOSANTAKATH ISMALI,
... Respondent
2. PAYYANNUR MUNICIPALITY,
For Petitioner :SRI.V.RAJAGOPAL
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :07/12/2006
O R D E R
M.SASIDHARAN NAMBIAR,J.
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W.P.(C) NO.32102 OF 2006
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Dated this the 7th day of December,2006
JUDGMENT
Petitioners are the defendants 1 and 2 in
O.S.167/04 on the file of Munsiff Court, Payyannur.
First respondent is the plaintiff and second
respondent the third defendant. First respondent
filed I.A.1642/04 an application under Order XXXIX
Rule 1 of Code of Civil Procedure seeking an order
of temporary injunction against respondents from
trespassing into plaint A schedule property or
constructing any hospital building in violation of
the Building Rules in plaint schedule property. B
schedule property belongs to petitioners and A
schedule property belongs to first respondent.
Petitioners contended that first respondent has no
right to seek an order of temporary injunction as
sought for. As per Ext.P5 order, learned Munsiff
granted an order of temporary injunction till the
disposal of the suit. Petitioners challenged that
W.P.(C)32102/06 2
order before Sub Court in CMA 7/05. The learned
Sub Judge on hearing both sides, confirmed the
order and dismissed the appeal. It is challenged in
this petition filed under Article 227 of
Constitution of India.
2. Learned counsel appearing for petitioners
was heard.
3. The argument of learned counsel appearing
for petitioners was that plaint B schedule
property belongs to petitioners and it lies to the
east of the plaint A schedule property which
belongs to first respondent and there is a well
demarcated boundary separating the two properties
as shown by the Commissioner in the plan and there
is a compound wall constructed in stones on the
line B, B1, B2 and b as demarcated by the
Commissioner and from b to c the eastern wall of
the building forms the demarcating boundary and
petitioners are constructing the building in the
plaint B schedule property within their area and
the identity cannot be disputed in view of the
W.P.(C)32102/06 3
existence of the compound wall and building and
therefore courts below should not have granted an
order of temporary injunction.
4. On hearing learned counsel appearing for
petitioners, as is clear from the orders of the
courts below, what weighed with the courts was
the fact that if the construction is allowed to be
carried out in the plaint B schedule property in
the alleged violation of Building Rules and
finally in the suit it is found that they are not
entitled to construct the building, it would cause
irreparable injury and therefore balance of
convenience is in favour of granting the order to
first respondent. The arguments of learned counsel
appearing for petitioners is that by carrying out
the construction of the building, no irreparable
injury will be caused and on the other hand as the
suit itself is not maintainable and the order is
to be quashed. The finding of the learned Munsiff
was confirmed by learned Sub Judge. Exercising the
extra ordinary jurisdiction of this court under
W.P.(C)32102/06 4
Article 227 of the Constitution of India, it is not
proper to interfere with the factual finding in
the orders of the courts below. The suit was
instituted in 2004. The suit is ripe for trial.
The trial of the suit could be expedited.
Writ Petition is therefore disposed of by
directing learned Munsiff to dispose of O.S.167/04
as expeditiously as possible and in any event
within four months from the date of receipt of a
copy of the judgment, and untrammelled by any
observations in Ext.P5 and P6 orders or this
judgment.
M.SASIDHARAN NAMBIAR
JUDGE
tpl/-
M.SASIDHARAN NAMBIAR, J.
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W.P.(C).NO. /06
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JUDGMENT
SEPTEMBER,2006