N.R.Ramaswamy vs Nurani Grama Samudayam … on 12 August, 2008

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 24338 of 2008(V)


1. N.R.RAMASWAMY, S/O.N.R.RAMESHAN,
                      ...  Petitioner

                        Vs



1. NURANI GRAMA SAMUDAYAM REPRESENTED
                       ...       Respondent

2. PALAKKAD MUNICIPALITY REPRESENTED

                For Petitioner  :SRI.S.SREEKUMAR

                For Respondent  :SRI.V.CHITAMBARESH (SR.)

The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR

 Dated :12/08/2008

 O R D E R
                 M. SASIDHARAN NAMBIAR, J.
                   ------------------------------------------
                   W.P.(C) NO. 24338 OF 2008
                   ------------------------------------------
             Dated this the 12th day of August, 2008


                              JUDGMENT

This petition is filed under Article 227 of Constitution of

India challenging Ext.P6 order passed by Munsiff Court,

Palakkad in Ext.P5 application (I.A.2825 of 2008). Ext.P5

application was filed under Section 10 of Code of Civil

Procedure and also under Section 151 to stay the suit till the

final disposal of writ petition 30442 of 2007. The case of the

petitioner, defendant in the suit, is that subsequent to the filing

of the suit and after disposal of R.S.A.505 of 2007 Government

has taken possession of the alleged playground, though it is not

a playground, and challenging that action writ petition 30442 of

2007 is pending before this Court where an order to maintain

status quo until disposal of writ petition was passed and in view

of the subsequent development even if a mandatory injunction is

to be granted, defendants cannot comply with decree and

therefore suit is to be stayed till disposal of writ petition 30442

of 2007.

2. Learned counsel appearing for petitioner argued that

WP(C)24338/08 2

subsequent event of taking possession of the property by the

Government and pendency of the writ petition challenging that

action are relevant facts in the suit and as the right of the

Government to take possession could be settled only in the writ

petition 30442 of 2007 learned Munsiff should have stayed the

suit till disposal of the writ petition as sought for.

3. On hearing the learned counsel I do not find any

illegality or irregularity warranting interference in Ext.P6 order.

The relief sought for in writ petition 30442 of 2007 is not the

relief sought for in O.S.550 of 2006. The question whether

defendants could comply with the decree to be passed by the

Court, if any, is not a matter to be decided in the writ petition. If

the case of the Petitioner is that in view of the subsequent event,

defendants cannot comply with the decree for mandatory

injunction which may be passed, defendants are entitled to place

that fact before the Court in O.S.550 of 2006. But that is not a

ground to order stay of the suit as sought for under Ext.P5

application.

Writ petition is dismissed.

M. SASIDHARAN NAMBIAR,
JUDGE

Okb/-