IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 1895 of 2009(A)
1. PILAKEEL PALLIKANDI RASIYA,
... Petitioner
Vs
1. B.T.ABDUL SATHAR, S/O.LATE HUSSAINKUNHI,
... Respondent
For Petitioner :SRI.V.R.KESAVA KAIMAL
For Respondent : No Appearance
The Hon'ble MR. Justice K.P.BALACHANDRAN
Dated :19/01/2009
O R D E R
K.P.BALACHANDRAN, J.
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W. P. C No.1895 of 2009
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Dated this the 19th day of January, 2009
JUDGMENT
Petitioner is the sole defendant in
O.S.No.67/08 on the file of the Munsiff’s
Court, Kannur and the respondent is the sole
plaintiff in the said suit. The respondent
alleged that he has got a right to use the
plaint schedule property for ingress and
egress to his property and building and filed
the said suit for a decree of permanent
prohibitory injunction restraining the
defendant from locking the iron gate installed
at the south western corner of the scheduled
property and from making any construction so
as to obstruct or reduce the width and length
of plaint ‘C’ schedule pathway and from
preventing the plaintiff to take vehicles
through plaint ‘C’ schedule pathway and
directing the defendant to remove the block
W. P. C No.1895 of 2009 -2-
created by him at the south western corner of
plaint ‘C’ schedule property and to open
plaint ‘C’ schedule pathway for vehicular
traffic. Petitioner/defendant filed Exhibit P2
written statement resisting the suit.
Respondent/plaintiff filed Exhibit P3
affidavit along with an application seeking
for a mandatory inunction directing the
petitioner/defendant to demolish and remove
the obstructions and the iron gate at the
south western corner of the schedule property
so as to make plaint ‘C’ schedule pathway
convenient for vehicular traffic and on
failure to depute a court Amin to execute the
order. Petitioner/defendant filed Exhibit P4
counter and objected to the grant of mandatory
injunction prayed for.
2. I.A.453/08 filed by the respondent/
plaintiff for injunction and I.A.454/08 filed
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by the respondent/plaintiff for mandatory
injunction were disposed of by the court below
vide Ext.P5 common order dt.04/03/08
dismissing I.A.453/08 and allowing I.A.454/08
directing the petitioner/defendant to remove
the gate installed on the western side of ‘C’
schedule way within three days so as to enable
the respondent/plaintiff and his tenants to
use the ‘C’ schedule way and ordering that
Ext.C2 shall form part of the order. The said
Ext.C2 is stated to be Ext.P13 produced by the
petitioner. The petitioner filed C.M.A.31/08
assailing the said mandatory order of
injunction and the said appeal was dismissed
by the first appellate court vide Ext.P8
judgment in the said C.M.A.31/08 dt.14/10/08.
It is assailing the said Ext.P8 judgment
confirming Ext.P5 order passed by the trial
court that this Writ Petition is filed.
W. P. C No.1895 of 2009 -4-
3. Arguments of counsel on both sides
were heard at length. The direction of the
court below was to remove the gate installed
on the western side of the ‘C’ schedule way.
Counsel for the petitioner/defendant submits
that if the gate is removed the entire
property will be left open even during night
time and that it will render insecurity and
therefore, he may be allowed to keep the gate
locked between 9.00 p.m. and 7.00 a.m. and
that to that extent the direction to remove
the gate so installed may be modified. I am of
the view that the purpose will be served by
making a modification in Ext.P5 order to that
much extent till disposal of the court by the
court below.
4. In the result, I order that the gate
on the western side of ‘C’ schedule pathway
directed to be removed by Ext.P5 order and
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confirmed by Ext.P8 judgment shall stand
modified to the extent that the gate need not
be removed, but shall be kept open between
7.00 a.m and 9.00 p.m until disposal of the
suit by the court below.
5. Counsel for the respondent submits
that even after the said time there may be
necessity for himself and his tenants to have
the gate opened and therefore, key may be
ordered to be provided to all of them. The
respondent himself shall provide a lock to the
gate with one key furnished to the appellant
and he can serve necessary duplicate keys to
his tenants as he pleases. If he does not do
so in another two days, the petitioner is
allowed to use his own lock and furnish one
key to the respondent and the respondent may
have the key duplicated so as to give the
necessary duplicated keys to his tenants. This
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direction shall remain in force till disposal
of the suit by the court below.
6. With the above modifications in the
order of the courts below, I dispose of this
Writ Petition.
K.P.BALACHANDRAN,
JUDGE
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