IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 20112 of 2009(O)
1. PAUL, AGED 33 YEARS,
... Petitioner
Vs
1. VARGHESE, AGED 65 YEARS,
... Respondent
2. MARRY, AGED 58 YEARS
For Petitioner :SRI.SAIBY JOSE KIDANGOOR
For Respondent :SRI.BABU KARUKAPADATH
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :27/07/2009
O R D E R
S.S. SATHEESACHANDRAN, J.
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W.P.(C) No.20112 of 2009
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Dated: 27th July, 2009
JUDGMENT
The Writ Petition is filed seeking the following reliefs:
1. To call for the records leading upto Exts.P2 and P3 orders and set
aside the same.
2. To issue such other appropriate orders or directions as this
Honourable Court deems fit in the nature and circumstance of the
case.
2. Petitioner is the plaintiff in O.S.No.371/08 on the file of the
Munsiff Court, Kodungallur. Suit is one for perpetual prohibitory
injunction and the respondents are the defendants. In the suit, the
petitioner moved an application for interim injunction to restrain the
defendants from trespassing upon his property and interfere with his
peaceful possession and enjoyment over that property. The
defendants, on appearance, filed another application for interim
mandatory injunction contending that a water canal going through
the property of the petitioner has been enjoyed by him and now the
suit has been laid after filling up that canal with quarry powder. By
way of the interim mandatory injunction the respondents sought for
removal of the quarry powder from the canal. An Advocate
W.P.C.No.20112/09 – 2 –
Commissioner conducted local inspection and filed a report and
thereafter, both the applications were heard and the learned Munsiff
passed a common order dismissing the application filed by the
petitioner and allowing the application moved by the respondents.
Against the orders as stated above, the petitioner preferred two
appeals, one, against the dismissal of his application for injunction
and the other, the allowing of the interim mandatory injunction on
the application of the respondents. The appeals were numbered
before two different Sub Courts, the Principal Sub Court and the
Additional Sub Court, Irinjalakuda. When the petitioner applied for an
interim relief for stay of the order of the interim mandatory injunction
granted in favour of the respondents in the appeal preferred against
the order passed by the learned Munsiff, the learned Sub Judge, after
hearing the counsel on both sides, passed an order dismissing the
application for interim relief and disposing of the C.M.Appeal itself
with a direction to the court below to dispose the suit within three
months from the date of receipt of the order. Ext.P3 is the copy of
the order. Propriety and correctness of Ext.P3 order is impeached by
the petitioner invoking the supervisory jurisdiction vested with this
court under Article 227 of the Constitution of India.
3. I heard the learned counsel on both sides. Learned counsel
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for the respondents submitted the relief claimed in the petition has
become infructuous in as much as the interim mandatory injunction
granted by the court had already been implemented pursuant to the
dismissal of the C.M.Appeal by Ext.P3 order. Whatever that be,
perusal of Ext.P3 order shows that the disposal of the C.M.Appeal by
the learned Sub Judge while hearing of an application for interim
relief moved in that appeal was patently erroneous and unsustainable
in law. The appeal preferred against the order require to be disposed
of by a judgment and not by way of an order after affording
reasonable opportunity to the appellant and also the respondents to
address the arguments on the merits of the case. The direction given
by the court to dispose the suit within a period of three months is
meaningless where it is seen that another C.M.Appeal preferred by
the petitioner/plaintiff as against one application disposed under the
common order is pending before another court. Ext.P3 order cannot
be sustained and it is liable to be dismissed. I do so. Whether the
interim mandatory injunction has been given effect to after dismissal
of the appeal under Ext.P3 order cannot be given much merit and
consideration where it is seen that the dismissal of the appeal was
improper and unjustifiable. The court below is directed to take back
the appeal on file and on such restoration, it is ordered that the
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appeal shall be transferred to the First Additional Sub Court where
the other appeal preferred by the petitioner after the dismissal of the
application under the common order , i.e. C.M.Appeal No.8/09 is
pending so that the same court can consider both the applications
and pass appropriate judgment after hearing the counsel on both
sides. The First Additional Sub Judge is directed to hear and dispose
both the appeals on receipt of the records in C.M.Appeal No.9/09 as
expeditiously as possible, at any rate, within a period of three months
from the date of receipt of such records. It is open to the respondents
to canvass whatever grounds available to them including the reliefs
have claimed in the appeals have become infructuous in the light of
the subsequent events indicating that the interim mandatory
injunction granted by the court has already been implemented. The
First Additional Sub Judge shall dispose both the appeals arising from
the common order on its merits, untrammelled by any of the
observations made in Ext.P3 order. The Writ Petition is disposed as
above. Transmit a copy of this judgment to the Principal Sub Court,
Irinjalakuda and the Additional Sub Court, Irinjalakuda.
srd S.S. SATHEESACHANDRAN, JUDGE