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Paul vs Varghese on 27 July, 2009

Kerala High Court
Paul vs Varghese on 27 July, 2009
       

  

  

 
 
  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

W.P.C.No.20112/09 – 3 –

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

W.P.C.No.20112/09 – 4 –

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

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