IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 25261 of 2010(O)
1. JOSEPH, S/O.MATHEW, AGED 60,
... Petitioner
Vs
1. LEELA @ SUNDHARI, W/O.THANKAPPAN,
... Respondent
2. THANKAPPAN, S/O.RAMAN, AGED ABOUT 58,
For Petitioner :SRI.K.C.CHARLES
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :16/08/2010
O R D E R
THOMAS P JOSEPH, J.
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W.P.C.No.25261 of 2010
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Dated this 16th day of August, 2010
JUDGMENT
Plaintiff in O.S.No.280 of 2009 of the court of learned
Munsiff, Thodupuzha is the petitioner. He sued for declaration of
right of easement by way of prescription and consequential
injunction alleging that disputed pathway has width of 12 feet. As
per the version of petitioner there was an order of injunction in
force until the said order was disposed of on 24-03-2010. On
25-03-2010 as per order on I.A.No.592 of 2010 learned Munsiff
directed parties to maintain status quo for a period of 30 days.
While so, alleging that in violation of the said order respondents
destroyed pathway petitioner filed I.A.No.604 of 2010 for an
order of restoration of the pathway and I.A.No.605 of 2010 for
prosecution for alleged violation of the order of status quo.
Learned Munsiff dismissed I.A.No.605 of 2010 (obviously for
want of evidence) and allowed I.A.No.604 of 2010 in part
directing respondents to remove stones etc from the disputed
pathway. Petitioner is aggrieved in that I.A.No.604 of 2010 was
allowed only in part and that there was no direction for
restoration of retaining wall. Learned counsel contends that
W.P.C.No.25261 of 2010
: 2 :
learned Munsiff was not correct in disallowing rest of the prayer
on the ground that he has no jurisdiction to entertain the matter.
2. I am not going to the question of jurisdiction for
learned Munsiff to dispose of applications after the suit was
dismissed on 24-03-2010. Learned Munsiff has now directed
respondents to remove the stones etc from the disputed way as
an interim arrangement. Rest of the prayer was not allowed by
the learned Munsiff. That is a discretionary order passed by the
learned Munsiff which does not call for interference under Article
227 of the Constitution. If at all petitioner is entitled to get
retaining wall allegedly demolished by the respondents restored
it is not as if appellate court has no power to entertain the matter
since the alleged alteration in the condition of disputed way was
made after the institution of the suit. There is no reason why I
should interfere with the impugned order at this stage.
Resultantly without prejudice to the right if any of the
petitioner to move the appellate court for appropriate further
relief in the matter this writ petition is closed.
(THOMAS P JOSEPH, JUDGE)
Sbna/-