IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 34640 of 2008(W)
1. SURESH KUMAR, S/O. NAGAPPAN PILLAI,
... Petitioner
Vs
1. PADMAKUMARY,
... Respondent
For Petitioner :SRI.P.HARIDAS
For Respondent :SRI.NAGARAJ NARAYANAN
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :25/02/2010
O R D E R
S.S.SATHEESACHANDRAN, J.
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W.P.(C).NO.34640 OF 2008 ()
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Dated this the 25th day of February, 2010
J U D G M E N T
Petitioner is the plaintiff in O.S.No.503 of 2007 on the
file of the Munsiff Court, Kottarakkara. Suit is for declaration
of easement and for injunction, and the respondent is the
defendant. Alleging that the respondent/defendant is making
attempts to obstruct the free flow of air and light to his
property, by constructing a compound wall beside her
property, which is described as ‘B’ schedule, the
petitioner/plaintiff filed the suit seeking the reliefs of
declaration of easement and injunction. With the suit,
petitioner/plaintiff had also moved an application for interim
injunction as identical to the reliefs sought in the suit. That
application was resisted by the respondent/defendant filing
objection. The learned Munsiff after considering the
application, dismissed it vide Ext.P4 order. Petitioner/plaintiff
preferred an appeal against Ext.P4 order, which numbered as
C.M.A.No.49 of 2008, is pending consideration before the Sub
WPC.34640/2008 2
Court, Kottarakkara. Meanwhile, the respondent/defendant
had moved an application (Ext.P6) before the Munsiff Court,
Kottarakkara, seeking orders from the court for rendering
police assistance to put up a boundary wall beside her
property. At that stage, petitioner filed the present writ
petition seeking direction that the trial court be restricted
from entertaining Ext.P6 application and pass orders thereof
till disposal of his appeal, and also a direction for an
expeditious disposal of his appeal by the Sub Court.
2. Notice given, the respondent has entered appearance.
I heard the counsel on both sides. The learned counsel for the
petitioner submitted that Ext.P6 application has been filed by
the respondent/defendant on the basis of some observations
made in Ext.P4 order that she has every right to put up a
compound wall within her property. The entitlement of the
respondent as to whether she can put up a boundary with the
aid of the court has not been canvassed before the court so far
and on the basis of the observations made by the court in
Ext.P4 application, the court is incompetent to entertain
Ext.P6 application or pass any order thereof is the submission
WPC.34640/2008 3
of the counsel. Whatever that be, I find that Ext.P6
application has not been considered by the court below on its
merit so far. Petitioner can file objection to Ext.P6
application, and needless to point out, the court below has to
consider the legal principles applicable in entertaining and
disposing such an application. At this stage, this Court need
not look into the merit of Ext.P6 application moved by the
respondent/defendant. It is submitted that respondent had
already entered appearance in the C.M.A. pending before the
Sub Court, Kottarakkara. Having regard to the facts and
circumstances involved, I direct the learned Sub Judge to hear
and dispose of C.M.A.No.49 of 2008 within three months from
the date of receipt/production of a copy of this judgment. Writ
petition is accordingly disposed of.
Send a copy of the judgment to the Munsiff Court and
Sub Court concerned forthwith.
S.S.SATHEESACHANDRAN
JUDGE
prp
WPC.34640/2008 4