J.R.Leelabal vs J.R.Vasanthakumar on 10 December, 2009

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 24516 of 2008(R)


1. J.R.LEELABAL, D/O.JESSY, R/AT.
                      ...  Petitioner

                        Vs



1. J.R.VASANTHAKUMAR, R/AT.TC.25/116(B)
                       ...       Respondent

2. VIJAYAKUMARI, W/O.J.R.VASANTHAKUMAR,

3. VINU RAJ.V.V., S/O.J.R.VASANTHAKUMAR,

                For Petitioner  :SRI.R.S.KALKURA

                For Respondent  :SRI.RAM MOHAN.G.

The Hon'ble MR. Justice S.S.SATHEESACHANDRAN

 Dated :10/12/2009

 O R D E R
                  S.S.SATHEESACHANDRAN, J.
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                   W.P.(C). No. 24516 OF 2008

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           Dated this the 10th day of December 2009.


                           JUDGMENT

This writ petition is filed by the petitioner seeking the

following reliefs.

i) Issue a writ of Certiorari or any other
appropriate writ, order or direction of
the nature of Certiorari quashing or
setting aside Exhibit P15 order dated
25.06.2008 in C.M.A.No.58/2008 on the
file of the II Additional District Court,
Trivandrum.

ii) Grant such other reliefs which are
appropriate and incidental to this
proceeding and which this Hon’ble
Court may deem fit and proper.

2. Petitioner in this writ petition is the plaintiff in

O.S.No.366 of 2008 on the file of the II Additional Munsiff’s

Court, Trivandrum. The suit is for perpetual prohibitory

injunction and the respondents are the defendants. The dispute

involved related to a pathway described as ‘B’ Schedule over

which the plaintiff claimed exclusive rights. A decree of

injunction is sought for to restrain the defendants from

trespassing on that pathway. With the suit, the plaintiff moved

W.P.(C). No. 24516 OF 2008

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an application for interim relief identical to the main relief

sought for till its disposal. The learned Munsiff, after hearing

both sides allowed that application restraining the defendants

from trespassing upon the ‘B’ Schedule pathway and committing

any waste therein. Ext.P15 is copy of the order. In appeal

preferred by the defendants against Ext.P13 order, the learned

Additional District Judge modified that order limiting the

injunction only in respect of committing waste. Ext.P15 is the

copy of that judgment. By Ext.P15 judgment, the defendants are

also allowed to make use of ‘B’ Schedule pathway but without

committing any waste. Propriety and correctness of Ext.P15

judgment modifying Ext.P13 order of the learned Munsiff is

challenged in the writ petition invoking the supervisory

jurisdiction vested with this Court under Article 227 of the

Constitution of India.

3. I heard the counsel on both sides. Pursuant to Ext.P13

order passed by the learned Munsiff and Ext.P15 judgment of the

learned District Judge with reference to the submissions made by

the counsel on both sides and also other exhibits tendered with

W.P.(C). No. 24516 OF 2008

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the writ petition, I find no interference with Ext.P15 judgment is

warranted and what is required is only a speedy disposal of the

suit giving a quietus to the whole controversy. Both sides submit

that the suit is now ripe for trial. Whereas the plaintiff is having

a case that ‘B’ Schedule is private way exclusively belonging to

her, the defendants contend that there is already a dedication of

that way to the Corporation and it is maintained by that

authority. So the real question to be involved in the suit is

whether it is a private way exclusively belonging to the plaintiff

or the defendants have some rights over that pathway whether

or not it has been dedicated to the Corporation. The learned

counsel for the plaintiff submits that the defendants have also

canvassed a right of prescriptive easement over the pathway

militating against the case that there is a dedication to the public

vesting the way with the Corporation. Whatever that be, the

disputed questions involved require to be adjudicated in the suit

after affording opportunity to both sides to lead evidence in

support of their respective case. The learned Munsiff is directed

to dispose the suit as expeditiously as possible, untrammeled by

W.P.(C). No. 24516 OF 2008

4

any of the observations made in its Ext.P13 order and Ext.P15

judgment of the learned District Judge, at any rate, within a

period of six months from the date of receipt / production of a

copy of this judgment.

The writ petition is disposed of as above.

S.S.SATHEESACHANDRAN
JUDGE

kkms/