IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 5209 of 2010(O)
1. CHANDRAN,S/O.GOPALAN,ORAVAKODE,
... Petitioner
Vs
1. STANLEY,S/O.RAPHEL,ORAVAKODE,
... Respondent
2. JAMES,S/O.RAPHEL,-DO- -DO-
For Petitioner :SRI.SAJAN VARGHEESE K.
For Respondent :SRI.A.K.MADHAVAN UNNI
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :16/06/2010
O R D E R
THOMAS P JOSEPH, J.
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W.P.C.No.5209 of 2010
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Dated this 16th day of June, 2010
JUDGMENT
This writ petition is filed by the defendant in O.S.No.337 of
2009 of the court of learned Munsiff, Chittur. That was a suit filed
by the respondents on 12-08-2009 claiming prohibitory injunction
in respect of plaint B schedule way. In short contention of
respondents is that petitioner is attempting to reduce width of
plaint B schedule pathway. In that suit, respondent filed
I.A.No.2655 of 2009 for an order of mandatory injunction alleging
that petitioner has caused obstruction to the said pathway. That
application was allowed by learned Munsiff which has been
confirmed by the appellate court in C.M.A.No.119 of 2009. Hence
this writ petition at the instance of defendant. Petitioner has
filed O.S.No.220 of 2007 against respondents seeking decree for
prohibitory injunction against respondents demolishing the
northern fence and trespassing into the property of petitioner and
widening the disputed pathway. Respondents contended that
petitioner had surrendered space having width of one foot on
receiving consideration of Rs.5,000/- for widening the existing
pathway and accordingly the pathway was widened into a way
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having width of 3.7 meters. Later, petitioner trespassed into the
said pathway and put up a new fence. In O.S.No.220 of 2007 the
Advocate Commissioner inspected properties and submitted
reports. On evidence learned Munsiff found in O.S.No.220 of 2007
that width of the disputed pathway was 3.7 meters and held that
petitioner is not entitled to the reliefs prayed for in that suit. That
suit ended in dismissal. That judgment and decree are under
challenge in A.S.No.298 of 2009 which is pending consideration
before learned District Judge, Palakkad. In the meantime, after
dismissal of O.S.No.220 of 2007 petitioner obtained an order for
maintenance of status quo till filing of the appeal as per order
dated 13-07-2009 on I.A.No.1638 of 2009. Learned District Judge,
while dealing with A.S.No.298 of 2009 has also issued an order for
maintenance of status quo. While so, respondent filed O.S.No.337
of 2009 for reliefs as aforesaid wherein the impugned order was
passed on I.A.No.2655 of 2009 which has been confirmed in
C.M.A.No.119 of 2009.
2. Order on I.A.No.2655 of 2009 directs petitioner to
remove obstruction allegedly caused in the disputed pathway. The
dispute between the parties is as regards the width of pathway,
while petitioner maintains that it is 2.6meters respondents assert
that as 3.7 meters as found in O.S.No.220 of 2007. I stated, that
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dispute is pending decision of the learned District Judge in
A.S.No.298 of 2009.
3. I have heard learned counsel on both sides. Learned
counsel for petitioner has a contention that the order of mandatory
injunction disregarding the fact that the real controversy is under
consideration of the appellate court in A.S.No.298 of 2009 is not
sustainable. Learned counsel for petitioner asserts that trial of
O.S.No.337 of 2009 has been stayed pending disposal of
A.S.No.298 of 2009 as per order on I.A.No.2805 of 2009 while
learned counsel for respondents with equal vehemence assert that
the application for stay under Section 10 of the Code of Civil
Procedure is still pending. Whatever that be, it is not disputed by
both sides that the controversy involved in both the case is as to
the width of disputed pathway. That dispute is pending
consideration in A.S.No.298 of 2009 in a previously instituted suit.
In such a situation, it is only proper that order on I.A.No.2655 of
2009 is kept in abeyance until learned District Judge disposed of
A.S.No.298 of 2009 and made subject to that decision.
4. Learned counsel for respondents made a complaint that
even the existing pathway has been obstructed by the petitioner.
So far as that submission of learned counsel is concerned,
petitioner is bound to remove whatever obstruction fi any found in
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the pathway having width of 2.6 meters from the existing northern
boundary of property of petitioner.
Resultantly, this writ petition is disposed of in the following
lines:
(i) Execution of the order passed on I.A.No.2655
of 2009 in O.S.No.337 of 2009 is made
subject to the result of A.S.No.298 of 2009.
That order will remain in abeyance till the
disposal of the said appeal. In case that
appeal is dismissed as against the petitioner
it will be open to the learned Munsiff trying
O.S.No.337 of 2009 to execute order on
I.A.No.2655 of 2009 subject to the ultimate
result of that suit.
(ii) Petitioner is directed to remove the
obstruction if any from the pathway at a
width of 2.6meters from the existing
northern boundary of property of petitioner.
He is also directed not to cause any
obstruction in the said portion of the
pathway. Removal of obstruction if any from
the said portion of the pathway shall be done
by the petitioner within two weeks from this
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day failing which respondents can move the
trial court for removal of the obstruction
from the said portion of the pathway.
(iii) Parties hereto or any of them can request
learned District judge for expeditious
disposal of A.S.No.298 of 2009 and if any
such request is made learned District Judge
shall consider the difficulties expressed by
respondents and pass appropriate orders for
expeditious disposal of the appeal.
(THOMAS P JOSEPH, JUDGE)
Sbna/-