IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 1094 of 2007(E)
1. JANAKIYA SAMARA SAMITHI, THURAVOOR,
... Petitioner
2. COMMITTEE MEMBER,
3. COMMITTEE MEMBER,
4. MEMBER,
Vs
1. DIVAKARAN, S/O. KUNJAN,
... Respondent
2. ASSISTANT EXCISE COMMISSIONER,
For Petitioner :DR.V.N.SANKARJEE
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :10/01/2007
O R D E R
M.SASIDHARAN NAMBIAR,J.
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W.P.(C)NO.1094 OF 2007
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DATED THIS THE 10th DAY OF JANUARY, 2007
JUDGMENT
Petitioners are plaintiffs in O.S.226/05 on the file of Addl. Munsiff
Court, Cherthala. Respondents are defendants. In the suit, petitioners
filed I.A.1064/05, an application under order XXXIX Rule 1 of Code of
Civil Procedure seeking an order of prohibitory injunction restraining
first respondent from running toddy shop contending that toddy shop
is in a building standing within the prohibited distance from Mannathu
Sreekrishnaswamy Temple and Paranderaswaram Siva Temple. An
order of temporary injunction was granted by learned Munsiff under
Ext.P4 order. First respondent challenged that order before Sub Court,
Cherthala in C.M.A.12/06. When learned Sub Judge did not pass an
order, in the application filed by appellant to stay the operation of
Ext.P4 order, first respondent approached this Court by filing W.P.(c)
8410/06. Under Ext.P6 order, this Court directed Sub Judge to pass
appropriate order without further delay. Under Ext.P6 order, learned
Sub Judge granted an order of stay of operation of Ext.P4 order. That
order was challenged before this Court in W.P.(c)14269/06. Under
Ext.P7, this Court directed learned Sub Judge to dispose the appeal
W.P.(c)1094/07 2
maintaining Ext.P6 order. As per Ext.P8 order, learned Sub Judge
finally allowed the appeal and vacated the order of temporary
injunction granted by learned Munsiff. It is challenged in this
petition filed under Article 227 of Constitution of India.
2. Learned Counsel appearing for petitioners was heard.
3. Arguments of learned Counsel appearing for petitioners
was that under Ext.P8 order, learned Sub Judge interfered with
Ext.P4 order holding that state was not made a party and
publication under Order I Rule 8 of Code of Civil Procedure was not
effected and the licensing authority was impleaded as a defendant
in the suit and plaintiffs have effected publication of the notice by
affixure in the notice board and consequently a party appeared
before the Court to get himself impleaded and in such
circumstances, Ext.P8 order is to be quashed.
4. On hearing learned Counsel appearing for petitioner, I
do not find any infirmity in Ext.P8 order warranting interference in
exercise of the extraordinary jurisdiction of this Court under Article
227 of Constitution of India.
5. The question whether the toddy shop is situate within
the prohibited distance from the temples,as claimed by petitioners is
to be decided in the suit on the evidence. Eventhough an order of
temporary injunction was granted originally, after Ext.P6 order,
there was no order in favour of plaintiffs.
W.P.(c)1094/07 3
In such circumstances, I do not find any reason to interfere
with Ext.P8 order passed by learned Sub Judge exercising the
discretion vested in him. Learned Munsiff is directed to dispose the
suit as expeditiously as possible,untrammeled by any observation in
Ext.P8. If trial steps are over, learned Munsiff to dispose the suit
before closing of the Court for summer vacation.
M.SASIDHARAN NAMBIAR,JUDGE
Acd
W.P.(c)1094/07 4