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K.E. Eapen vs K.G. Reetha on 23 January, 2007

Kerala High Court
K.E. Eapen vs K.G. Reetha on 23 January, 2007
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C) No. 2604 of 2007(I)


1. K.E. EAPEN, S/O.EAPEN EAPEN,
                      ...  Petitioner

                        Vs



1. K.G. REETHA, D/O.GOMATHI AMMA,
                       ...       Respondent

2. K. SUDHARSANA KUMAR,

                For Petitioner  :SRI.C.M.STEPHEN

                For Respondent  : No Appearance

The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR

 Dated :23/01/2007

 O R D E R
                     M.SASIDHARAN NAMBIAR,J.



                     ------------------------------------------

                    W.P.(C) .Nos.2604/07 & 2672/07

                     ------------------------------------------


                      Dated   23rd     January   2007




                              J U D G M E N T

Petitioner is defendant and respondent the

plaintiff in O.S.1350/2005 on the file of First

Additional Munsiff court, Thiruvananthapuram.

Respondents filed I.A.9380/05, application under Order

XXXIX Rule 1 of Code of Civil Procedure, for an order

of temporary injunction. They also filed I.A.9381/05

for a direction to construct the northern demolished

portion of the compound wall. Petitioner resisted both

applications contending that he has got a right over

the road leading to his property and respondent has

not exclusive right over the road. As per Ext.P8 order

learned Munsiff found a prima facie case in favour of

respondents. Holding that balance of convenience is

also in their favour, under Ext.P8 order learned

Munsiff allowed both the applications. Petitioner

challenged the common order in C.M.A.Nos.145/05 and

146/05. As per Ext.P9 common order, learned District

Judge dismissed both appeals confirming the prima

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facie case and balance of convenience found by learned

Munsiff. These writ petitions were filed challenging

Ext.P9 common order.

2. Learned counsel appearing for petitioner was

heard.

3. Argument of learned counsel appearing for

petitioner is that learned Munsiff and District Judge

did not properly appreciate the case and under the

orders in interlocutory applications the very reliefs

sought for in the suit were granted and by the

result of the order, petitioner has no way to his

property and petitioner cannot enjoy his property and

in such circumstance, Ext.P8 and P9 orders are to be

quashed.

4. On going through Exts.P8 and P9 orders, it

is clear that learned Munsiff and District Judge

considered the question in the proper perspective.

Learned Munsiff and learned District Judge found that

prima facie petitioner did not have a right over the

road, which is a private way available to respondent.

In such circumstance, respondents are entitled to the

temporary injunction sought for. Both courts have

found that a part of northern compound wall was

demolished for the purpose of exclusive an access to

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the disputed road and respondents are entitled to get

it re-constructed.

5. Question is whether in exercise of the extra

ordinary jurisdiction of this court under Article 227

of Constitution of India, any interference is

warranted. When trial court and appellate court

exercised the discretion properly, it is not for this

court to interfere with the discretion exercised by

the courts in exercise of the supervisory or extra

ordinary jurisdiction of this court under Article 227

of Constitution of India. Question whether petitioner

has right over the road as claimed by him, is to be

decided in the suit on the evidence. Prima facie

courts found that petitioner has no right and

respondents have establish the right. In such

circumstance, both writ petitions are dismissed.

Learned Munsiff is directed to dispose the suit, as

expeditiously as possible, untrammelled by any

observations in Ext.P8 or P9 or in this judgment.

M.SASIDHARAN NAMBIAR,

JUDGE.

uj.

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