IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 2144 of 2010(O)
1. JOSEPH, S/O.ULAHANNAN
... Petitioner
Vs
1. PAILY, S/O.ULAHANNAN,
... Respondent
2. THOMMAN PAILY @ REJU,
For Petitioner :SRI.MATHEW JOHN (K)
For Respondent :SRI.K.K.CHANDRAN PILLAI
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :24/05/2010
O R D E R
THOMAS P JOSEPH, J.
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W.P.C.No.2144 of 2010
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Dated this 24th day of May, 2010
JUDGMENT
Claiming title and possession of plaint A schedule and right of
easement by way of prescription over plaint B schedule way,
petitioner filed O.S.No.89 of 2007 in the court of learned Munsiff,
Thodupuzha. On the application of petitioner learned Munsiff
issued an ex parte interim order of injunction restraining
respondents from interfering with plaint B schedule property. The
advocate commissioner who inspected the properties submitted
report as to the state of affairs of plaint A and B schedule.
Thereafter there was an alleged obstruction to plaint B schedule at
the instance of respondent, according to the petitioner in violation
of the interim order of injunction. For removal of that obstruction
petitioner filed I.A.No.488 of 2007 and obtained a favourable order.
Respondents challenged that order as well as order of prohibitory
injunction in C.M.Appeal No.39 of 2007. Learned District Judge
while confirming the order of injunction granted I.A.No.426 of
2007, set aside the order on I.A.No.488 of 2007 and directed
learned Munsiff to postpone the relief of mandatory injunction to
the final disposal of the suit preferably along with I.A.No.487 of
W.P.C.No.2144 of 2010
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2007. Petitioner, feeling aggrieved by that part of the judgment to
the extent learned District Judge interfered with the order on
I.A.No.488 of 2007 filed W.P.C.No.26789 of 2009 in this court.
This court vide judgment dated 20-11-2009 set aside the judgment
of learned District Judge to the extent it concerned I.A.No.488 of
2007 and directed learned District Judge to decide the relief prayed
for in that application on merit. Pursuant to that direction, learned
District Judge considered the appeal and dismissed the same in
confirmation of the order passed by learned Munsiff on I.A.No.488
of 2007. Thereafter petitioner filed Exts.P4 to P6 applications.
Ext.P4 is to depute an advocate commissioner for local inspection
and to report on the matters asked for therein. Ext.P5 is an
application to remove case from the list accompanied by a medical
certificate and Ext.P6 is an application to direct respondents to
implement the order on I.A.No.488 of 2007, ie. the order of
mandatory injunction. Apprehending that learned Munsiff might
proceed with trial of the suit before disposing of Exts.P4 to P6.
Petitioner/plaintiff has preferred this writ petition praying that
appropriate direction may be issued to the learned Munsiff to pass
final orders on Exts.P4 to P6 before the case is included in the list
for trial. Learned counsel for petitioner contends that while
disposing of W.P.C.No.26789 of 2009 this court has specifically
referred to the relevant aspects, highhanded act of the respondents
W.P.C.No.2144 of 2010
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in flouting the order of injunction passed by learned Munsiff and
obstructing plaint B schedule way which is the only means of
access to the petitioner to the plaint A schedule. According to the
learned counsel if without enforcing the order on I.A.No.488 of
2007 learned Munsiff proceeds to dispose of the suit, that in effect
would negate the relief granted to the petitioner on I.A.No.488 of
2007. Learned counsel for respondent No.2 (to whom it is
admitted, respondent No.1 has transferred the property pending
suit) would submit that petitioner has other alternative access to
the plaint A schedule and non implementation of the order on
I.A.No.488 of 2007 until disposal of the suit would not in any way
prejudice or affect the petitioner. It is also contended that going by
the materials on record petitioner is not entitled to get any relief in
respect of plaint B schedule way which can be revealed in the trial
of the suit.
2. I am not at the question in this proceeding whether
petitioner has any right of access to plaint A schedule through
plaint B schedule as contended by respondents which is to be
adjudicated in the suit. Indisputably there was an order of
temporary injunction against respondents causing obstruction to
the plaint B schedule reported by the advocate commissioner.
From the reports at various stages it is seen that there was
obstruction caused to the plaint B schedule after the interim order
W.P.C.No.2144 of 2010
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of injunction was issued. This court while disposing of
W.P.C.No.26789 of 2009 (though for the purpose of deciding the
writ petition challenging judgment of the learned District Judge in
C.M.Appeal.No.39 of 2007) has observed that the interim order of
prohibitory injunction so far it remained in force had to be obeyed
by the parties concerned and that violation of the order of
injunction is not only a matter which is affected the right of
petitioner but, affecting the majesty of court and the confidence of
the public in the process of the court. In the circumstances the
contention that petitioner ultimately would not be entitled to get
relief does not require to be considered at this stage.
3. As it now stands, the order of mandatory injunction on
I.A.No.488 of 2007 has become final and it is to be complied. When
there is an order of mandatory injunction on I.A.No.488 of 2007
directing removal of obstruction in plaint B schedule and that order
has been confirmed by the learned District Judge in
C.M.Appeal.No.39 of 2007. Learned Munsiff has to enforce that
order as requested for in Ext.P6 application. If trial of the suit is
conducted before doing so, it would have the effect of negating the
relief granted to the petitioner on I.A.No.488 of 2007. After the
order of mandatory injunction on I.A.No.488 of 2007 is enforced it
will be open to the learned Munsiff to post the case for trial without
loosing further time if pre-trial steps are over.
W.P.C.No.2144 of 2010
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This writ petition is allowed. The learned Munsiff,
Thodupuzha is directed to dispose of Exts.P4 to P6 applications
before the case is posted for trial in the list.
(THOMAS P JOSEPH, JUDGE)
Sbna/-