IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 17551 of 2010(O)
1. M.A.JEEVA, S/O.ASSARIA, MEDAYIL HOUSE,
... Petitioner
Vs
1. JOSHWA MATHEW, (MINOR), KURUVINAKUNNEL
... Respondent
2. THE VANDANMEDU GRAMA PANCHAYAT,
For Petitioner :SRI.K.K.CHANDRAN PILLAI
For Respondent :SRI.N.SUBRAMANIAM
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :02/08/2010
O R D E R
THOMAS P. JOSEPH, J.
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W.P.(C) No.17551 of 2010
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Dated this the 2nd day of August, 2010.
JUDGMENT
Writ Petition is in challenge of Ext.P9, judgment in C.M.A.No.4 of 2010 of
the court of learned Sub Judge, Kattappana.
2. Petitioner filed O.S.No.213 of 2009 in the court of learned Munsiff,
Kattappana for a decree for prohibitory injunction against one Mathew Scaria
causing obstruction to the plaint B schedule pathway stated to be having width
of 12 feet and length of 250 metres, originating from the road on the west and
leading to plaint A schedule belonging to the petitioner. Immediately after
institution of suit, Advocate Commissioner inspected the properties on
18.12.2009 and submitted Ext.P5, report dated 05.01.2010 reporting about plaint
A and B schedules. Later, alleging that the said Mathew Scaria caused
obstruction to plaint B schedule pathway in violation of interim order of injunction
petitioner filed application for mandatory injunction to direct the said Mathew
Scaria to remove obstruction caused to plaint B schedule pathway. Pursuant to
that application Advocate Commissioner again inspected the property on
06.01.2010 and submitted Ext.P6, report dated 07.01.2010 reporting about
alleged obstruction to plaint B schedule pathway. Learned Munsiff allowed the
application for mandatory injunction and directed the said Mathew Scaria to
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remove obstruction caused to plaint B schedule pathway. Since that order was
not complied with petitioner filed I.A.No.407 of 2010 to implement the order of
mandatory injunction and that has been allowed vide Ext.P11, order dated
11.03.2010. It is pointed out that Ext.P11, order is under challenge in
C.M.A.No.7 of 2010 and operation of Ext.P11, order is stayed vide order on
I.A.No.419 of 2010.
2. In the meantime grandson (respondent No.1 herein) of Mathew
Scaria claiming to be the owner of property adjacent to the disputed plaint B
schedule filed O.S.No.3 of 2010 against petitioner and moved I.A.No.13 of 2010
for temporary injunction. According to respondent No.1 there is no such
pathway as described in plaint B schedule of O.S.No.213 of 2009 and instead,
there is only a pathway having width of three feet. That application was opposed
by the petitioner contending that width of the pathway is 12 feet and that after
filing of O.S.No.213 of 2009, Mathew Scaria trespassed into the disputed
pathway reducing its width to two feet. In that case also Advocate
Commissioner inspected the property and reported about the condition of
disputed way as on the date of his inspection. Learned Munsiff dismissed
I.A.No.13 of 2010 by Ext.P8, order referring to the evidence produced before
him. Respondent No.1 challenged that order in C.M.A.No.4 of 2010 which
learned Sub Judge vide Ext.P9, judgment has allowed directing parties to
maintain status quo as stated in Ext.C1, report in O.S.No.3 of 2010 until disposal
of the suit. That judgment is under challenge in this Writ Petition. Learned
counsel for petitioner has referred me to the various documents produced in
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O.S.No.3 of 2010 on the side of petitioner (defendant in O.S.No.3 of 2010) which
according to the learned counsel revealed that there was a well formed pathway
as on the date of institution of O.S.No.213 of 2009. Learned counsel contends
that it is after the institution of that suit that pathway was interfered by the
defendant in O.S.No.213 of 2009 and others. According to the learned counsel,
appellate court has not referred to the materials on record in directing that status
quo as reported in Ext.C1, report in O.S.No.3 of 2010 is to be maintained and
disposed of C.M.A.No.4 of 2010. Learned counsel for respondent No.1/plaintiff
in O.S.No.3 of 2010 contends that in the nature of contentions raised by the
parties it is only just and proper that the parties were directed to maintain
status quo as reported in Ext.C1, report in O.S.No.3 of 2010. It is contended that
respondent No.1 to whom the property belonged is not a party in O.S.No.213 of
2009 and hence whatever order passed in that suit is not binding on respondent
No.1.
3. It is not disputed before me that in challenge of Ext.P11, order
C.M.A.No.7 of 2010 is pending consideration of learned Sub Judge,
Kattappana. It is seen from Ext.P9, judgment that learned Sub Judge has not
referred to the relevant documents produced in the case before concluding that
status quo as reported in Ext.C1, report in O.S.No.3 of 2010 is to be maintained.
It is also seen that learned Sub Judge has simply stated that property as on the
date of suit has to be preserved. On going through Ext.P9 I am inclined to hold
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that learned Sub Judge has not considered the materials produced in the case
before reversing Ext.P8, order of learned Munsiff. Ext.P9, judgment cannot
therefore stand.
4. Now the question is whether Ext.P8, order passed by learned
Munsiff on I.A.No.13 of 2010 in O.S.No.3 of 2010 has to be restored. I stated
that learned Sub Judge while disposing of C.M.A.No.4 of 2010 has not referred
to the relevant documents produced by either side. Instead it is merely
observed that position of the property as per Ext.C1, report in O.S.No.3 of
2010 has to be maintained and directed parties to maintain the condition as
stated in Ext.C1, report.
5. I stated that the C.M.Appeal challenging Ext.P11, order is pending
consideration of the learned Sub Judge. Any order that may be passed in this
proceeding can have a bearing on the decision of that C.M.Appeal. I also stated
that the appellate court has not gone to the facts and evidence before ordering
status quo. In the circumstances I consider it appropriate to remit C.M.A.No.4
of 2010 to the court of learned Sub Judge so that learned Sub Judge could
dispose of C.M.A.No.4 of 2010 simultaneously with C.M.A.No.7 of 2010.
Resultantly this Writ Petition is allowed in the following lines:
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i. Ext.P9, judgment in C.M.A.No.4 of 2010 is set aside and that
appeal is remitted to the court of learned Sub Judge, Kattappana for fresh
decision.
ii. Learned Sub Judge shall dispose of C.M.A.No.4 of 2010
simultaneously with C.M.A.No.7 of 2010.
iii. Learned Sub Judge shall make every endeavour to dispose of the
C.M.Appeals before August 20, 2010.
iv. Parties shall appear in the court of learned Sub Judge on
10.08.2010.
THOMAS P.JOSEPH,
Judge.
cks