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