IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP.No. 799 of 2008()
1. CHANDRASEKHARAN
... Petitioner
Vs
1. R.ANTHONISWAMY
... Respondent
For Petitioner :SRI.O.RAMACHANDRAN NAMBIAR
For Respondent :SRI.D.KRISHNA PRASAD
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :04/11/2009
O R D E R
S.S. SATHEESACHANDRAN, J.
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C.R.P.No.799 of 2008
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Dated: 4th November, 2009
ORDER
The defendant in O.S.No.224 of 2008 on the file of the Munsiff
Court, Chittur has filed this revision. The revision is directed against
the order dismissing his petition filed to review the order passed in
an interlocutory application for injunction, I.A.No.862 of 2008, by the
plaintiff/respondent in the revision. The above suit was filed by the
respondent seeking a decree of injunction and also recovery of
possession. In the suit, plaintiff moved the above application
(I.A.No.862 of 2008) seeking interim injunction against the
defendant. Injunction sought was to restrain the defendant from
causing any obstruction in refencing the existing thorn fence and also
in repairing the existing compound wall. So far as the refencing of the
existing thorn fence, the defendant submitted that he has no
objection. To that extent, the injunction petition was allowed,
restraining the defendant from causing any obstruction to the plaintiff
in refencing the existing thorn fence under the supervision of an
advocate commissioner. When the commissioner visited the spot to
supervise the refencing, some obstruction was caused by the
CRP No.799/08 – 2 –
defendant and, thereupon, plaintiff moved for seeking police aid to
complete the refencing. At that stage, the petitioner/defendant
moved an application, I.A.No.2128 of 2008, for reviewing the order
passed in I.A.No.862 of 2008 allowing refencing of the existing thorn
fence. The review petition was opposed by the plaintiff, and, after
hearing both sides, the learned Munsiff dismissed that petition.
Correctness and propriety of that order is challenged in the revision.
2. I heard the counsel on both sides. At the time of hearing,
learned counsel for the defendant submitted that defendant has no
objection in refencing of the existing thorn fence on the western side
of the petition schedule item No.3 property, but, in many portions of
that boundary, there is no fence at all. Suit has been filed for
recovery of B schedule property apart from seeking a decree of
injunction, submits the counsel. So much so, without measuring and
identification of the property, during the pendency of the suit putting
up of a thorn fence solely on the basis of the order of injunction may
work out grave injustice. Though there is an order of injunction on
the basis of consent made by the defendant and further, the review
petition filed by the petitioner stands dismissed, I find some force in
the submission made by the counsel for the petitioner/defendant. Suit
CRP No.799/08 – 3 –
is pending and among other reliefs, recovery of possession is also
sought for. There is also no material at this stage that all along the
western boundary side of petition schedule item No.3 property a
thorn fence is in existence, the repair of which without obstruction
from the defendant under the supervision of the commissioner can be
proceeded with in compliance of the order under I.A.No.862 of 2008.
Learned counsel for the respondent has handed over to me a copy of
the report prepared by the advocate commissioner, which, contains
the rough sketch as to the property and the area where the existing
thorn fence has to be refenced. It is seen that the B schedule
property sought to be recovered is situate to the west of the existing
fence. When that be the case, if the same commissioner is deputed
excluding B schedule as shown in the plaint, the fence can be put up
in compliance with the injunction order already passed, no prejudice
or injury will be caused to the defendant, if the refencing is done as
shown in the rough sketch under the supervision of the advocate
commissioner. The question with respect to the recovery of B
schedule and other disputed questions involved in the suit can be
decided after adjudication. Measuring of the property as desired by
the defendant sought for in the review petition can be considered
CRP No.799/08 – 4 –
after compliance of the injunction order with respect to the refencing
of the existing thorn fence on the western side of the petition
schedule item No.3 as shown in the rough sketch prepared by the
advocate commissioner on 21.5.2008. Subject to the above
clarification, the revision is disposed.
srd S.S. SATHEESACHANDRAN, JUDGE