M.Raveendran vs S.K.Jayachandran on 28 June, 2010

Kerala High Court
M.Raveendran vs S.K.Jayachandran on 28 June, 2010




WP(C).No. 20056 of 2010(O)

                      ...  Petitioner


                       ...       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.
                             W.P.(C) No.20056 of 2010
                     Dated this the 28th day of June, 2010.


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

WP(C) No.20056/2010


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

WP(C) No.20056/2010


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.



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