IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 20056 of 2010(O)
1. M.RAVEENDRAN, AGED 68, S/O.MADHAVAN,
... Petitioner
Vs
1. S.K.JAYACHANDRAN, AGED 58,
... Respondent
For Petitioner :SRI.SAJEEV.T.P.
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :28/06/2010
O R D E R
THOMAS P. JOSEPH, J.
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W.P.(C) No.20056 of 2010
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Dated this the 28th day of June, 2010.
JUDGMENT
Petitioner, a senior citizen finding that there was obstruction to plaint B
schedule way over which he claimed right of easement by prescription sued
respondent for a declaration of his right and for prohibitory injunction, in
O.S.No.464 of 2009. Learned Munsiff granted him an exparte interim order of
prohibitory injunction on I.A.No.2314 of 2009 against causing obstruction in
plaint B schedule which according to the learned counsel for petitioner remains
in force even now. Grievance of the petitioner is that though the said order was
served on the respondent on 08.03.2009 and the Advocate Commissioner
inspected plaint B schedule the same day and submitted report, respondent in
violation of the order of injunction caused obstruction to plaint B schedule which
resulted in his filing I.A.No.5774 of 2009 for removal of obstruction. On his
application Advocate Commissioner again visited the property and reported the
obstruction. Learned Munsiff allowed I.A.No.5774 of 2009 directing respondent
to remove the obstruction within one month from date of order failing which
petitioner was permitted to remove the obstruction. Since respondent did not
remove the obstruction petitioner vide I.A.No.331 of 2010 requested the court to
depute an Amin to remove the obstruction. That application was allowed. Later,
learned Munsiff as if in a review of order on I.A.No.5774 of 2009 directed that the
gate which according to the petitioner was put up to obstruct his access through
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plaint B schedule need not be removed before a detailed enquiry is conducted
in that regard. Petitioner, aggrieved by that order filed W.P.(C) No.10795 of
2010 which this Court allowed as per judgment dated 08.04.2010 and the order
directing that the gate need not be removed until enquiry is conducted was set
aside. Respondent then filed Ext.P10, affidavit stating that all obstructions have
been removed. Petitioner could not agree to that. On his complaint learned
Munsiff passed Ext.P11, order deputing an Amin to execute the order on
I.A.No.5774 of 2009 as upheld by this Court in W.P.(C) No.10795 of 2010. The
Amin reported that he was obstructed (in his report). He filed Ext.P12, report
seeking police aid and the assistance of an Advocate Commissioner. Court
again deputed the Amin and Advocate Commissioner for removal of
obstruction. Advocate Commissioner filed Ext.P13, report. Then came
Ext.P14, order as per which learned Munsiff suo motu ordered examination of
the Advocate Commissioner and posted the case on 29.06.2010. That order is
under challenge in this Writ Petition.
2. It is not clear from the order under challenge the purpose of
examining Advocate Commissioner but, the order passed on I.A.No.5774 of
2009 as confirmed by this Court in W.P.(C) No.10795 of 2010 stands even
now. Hence learned Munsiff is bound to comply with the said order if there is still
any obstruction. Even after examination of Advocate Commissioner which
appears to me to be for ascertaining whether any obstruction still exists in
plaint B schedule, it is open to the petitioner to request learned Munsiff to direct
compliance with the order on I.A.No.5774 of 2009 and remove obstruction if any
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on plaint B schedule and/or challenge any order if adverse to the petitioner. In
that situation it is not necessary for this Court to interfere with the impugned
order at this stage.
3. Learned counsel requested that the court below may be directed to
expedite the proceedings. It needs no mention that obstruction if any exists in
plaint B schedule has to be removed as ordered at the earliest. Having regard
to the facts and circumstances of the case and judgment of this Court in W.P.(C)
No.10795 of 2010 I direct the learned Munsiff to expedite the proceedings.
Writ Petition is disposed of accordingly.
THOMAS P.JOSEPH,
Judge.
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