IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 27501 of 2009(O)
1. MANKADA SAIDALAVI,S/O.KUTTU HAJI,
... Petitioner
Vs
1. MANKADA HUSSAIN,S/O.MOHAMMED HAJI,
... Respondent
2. JAMSHEELA,D/O.KOPPILAN MOHAMMED,
3. MANKADA MOOSA,S/O.MOHAMMED HAJI,
4. AHAMMEDKUTTY,S/O.MOHAMMED HAJI,
5. MANKADA MAMMUDU,S/O.MOHAMMED HAJI,
6. MANKADA MOIDEEN HAJI,S/O.MOHAMMED HAJI,
7. PATHUMMU,D/O.MOHAMMED HAJI,
For Petitioner :SRI.C.M.MOHAMMED IQUABAL
For Respondent :SRI.T.V.GEORGE
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :31/05/2010
O R D E R
THOMAS P.JOSEPH, J.
====================================
W.P(C) No.27501 of 2009
and
W.P(C) No.30217 of 2009
====================================
Dated this the 31st day of May, 2010
J U D G M E N T
These Writ Petitions arise from judgment dated 26.8.2009 in
C.M.A. No.10 of 2009 of the court of learned District Judge, Manjeri
which in turn arose from the order passed by the learned Sub
Judge, Tirur on I.A.No.317 of 2009 in O.S. No.47 of 2009. Parties
are referred to as petitioner and respondents as in W.P(C)
No.27501 of 2009 for convenience.
2. Petitioner filed the suit for a decree for temporary
injunction to restrain respondents from interfering with his use of
the disputed way. Respondents resisted the suit on various
grounds. Petitioner filed I.A. No.317 of 2009 for temporary
injunction which trial court dismissed. Petitioner challenged that
order in C.M.A.No.10 of 2001. In that appeal petitioner filed an
application (I.A.No.518 of 2009) for temporary injunction. Learned
District Judge ordered both sides to maintain status quo but
directed petitioner not to use the disputed way for vehicular
traffic. That order was challenged by the petitioner in W.P(C)
W.(C) Nos.27501 &
30217 of 2009
-: 2 :-
No.20735 of 2009. This Court directed learned District Judge to
dispose of the appeal. On 26.08.2009 learned District Judge
disposed of the appeal granting an interim order of injunction in
favour of petitioner but with a rider that he shall not use the
disputed way for vehicular traffic. Petitioner is aggrieved by that
rider and preferred W.P(C) No.27501 of 2009 while the grant of
injunction is challenged by respondents in W.P(C) No.30217 of
2009. Learned Senior Advocate appearing for petitioner would
contend that facts of the case would show that even after
institution of the suit respondents have caused obstruction to the
pathway. Learned counsel for respondents contends that
appellate court was not justified in granting order of injunction
against them.
3. So far as challenge of the respondents to that part of
the judgment granting temporary injunction in favour of petitioner
is concerned it is seen from Ext.P7, judgment of learned District
Judge that at the time of hearing both sides expressed opinion
that order of the trial court (refusing to grant injunction) cannot be
sustained. Learned Senior Advocate contends that refusal to
grant injunction as prayed for and the direction that petitioner
shall not use the disputed way for vehicular traffic cannot be
sustained.
W.(C) Nos.27501 &
30217 of 2009
-: 3 :-
4. What is contained in Ext.P7, judgment is a statement
made by the parties through their counsel before the learned
District Judge that order of the trial court cannot stand. That
statement has to stand and cannot be challenged under Article
227 of the Constitution of India. Remedy was by way of review
before learned District Judge. No such course of action has been
taken. In the facts and circumstances of the case there is no
reason to interfere with the order of injunction granted by the
learned District Judge as per judgment under challenge.
5. Then the next question is whether learned District
Judge is justified in directing petitioner not to use the disputed
way for vehicular traffic. It is not as if learned District Judge has
acted beyond his power while issuing that direction. While
petitioner was permitted to use the pathway he was directed
having regard to circumstances of the case not to use the said
way for vehicular traffic. That is a direction issued by the learned
District Judge in exercise of his discretionary jurisdiction. So far as
it is not shown to be perverse or illegal I do not find reason to
interfere with the same invoking power under Article 227 of the
Constitution of India. I also find that learned District Judge has
directed disposal of the suit within four months from the date of
receipt of copy of that judgment. Judgment was pronounced on
W.(C) Nos.27501 &
30217 of 2009
-: 4 :-
26.08.2009. Had the parties co-operated the suit itself could have
been disposed of by now. That also persuades me not to interfere
with the discretionary jurisdiction exercised by the learned District
Judge. However I direct the trial court to dispose of the suit within
four months from the date of receipt of a copy of this judgment.
With the above direction these Writ Petitions are
dismissed.
THOMAS P. JOSEPH, JUDGE.
vsv