IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 25TH NOVEMBER 2010 / 4TH AGRAHAYANA 1932 FAO.No. 300 of 2010 --------------------- AGAINST THE ORDER DATED 13/09/2010 IN I.A.NO.1389/2010 IN AS.48/2010 OF SUB COURT, OTTAPPALAM IN OS.97/09 of MUNSIFF COURT, OTTAPPALAM .................... APPELLANTS/RESPONDENT/DEFENDANTS: ------------------------------------------- 1. ABDUL KHADER, S/O.AVANIKKATTU JAMALU, 50 YEARS, MARAYAMANGALAM, THACHANGAD, PALAKKAD TALUK. 2. FASILA D/O.ABDUL KHADER, 24 YEARS, MARAYAMANGALAM, THACHANGAD, PALAKKAD TALUK. BY ADV. MS.T.D.RAJALAKSHMI MR.R.SREEHARI RESPONDENTS/APPELLANTS/PLAINTIFFS: --------------------------------------------- 1. ALAVI, S/O.ALIKUTTY, CHAKKINGAL, MARAYAMANGALAM, POST NELLAYA, OTTAPALAM TALUK, PIN-679 356. 2. NABEESA, W/O.ALAVI, CHAKKINGAL, MARAYAMANGALAM, NELLAYA POST, OTTAPALAM TALUK, PIN-679 356. ADV. MR.G.SREEKUMAR (CHELUR) FOR R1 & 2 MR.K.RAVI (PARIYARATH) FOR R1 & 2 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 25/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: FAO.No. 300 of 2010 ORDER ON I.A.NO.3538/2010 DISMISSED. 25.11.2010 SD/- HARUN-UL-RASHID, JUDGE. // TRUE COPY // P.A TO JUDGE. HARUN-UL-RASHID, J. ------------------------ F.A.O.No.300 Of 2010 ---------------------- Dated this the 25th day of November, 2010. J U D G M E N T The appellants are the defendants in O.S.No.97 of 2009 on the file of the Munsiff Court, Ottappalam. Plaintiffs filed the suit for declaration and injunction. The trial court tried the suit along with the connected suit, namely, O.S.No.164 of 2005, filed by the very same plaintiffs. O.S.No.164 of 2005 was filed for a mandatory injunction. The trial court by judgment and decree dated 24.2.2010 dismissed both suits holding that the plaintiffs have not succeeded in proving the loss of lateral support and also the right of prescriptive easement of way over plaint B schedule. 2. Plaintiffs preferred A.S.No.48 of 2010 against the dismissal of O.S.No.97 of 2009. Plaintiffs/appellants filed an application under Order XXXIX Rule 1 of the Code of Civil Procedure for a temporary injunction restraining the defendants from obstructing the pathway. The said application was considered by the lower appellate court. The lower appellate court observed that there was injunction order in the suit F.A.O.No.300 Of 2010 ::2:: restraining the defendants from causing obstruction to the B schedule way during the pendency of the suit. The learned counsel for the appellants/defendants pointed out that the reasons stated by the lower appellate court granting injunction is factually wrong. In fact the application for injunction filed by the plaintiffs as I.A.No.212 of 2009 was dismissed on merits. subsequently, the plaintiffs filed C.M.A.no.12 of 2009 against the dismissal of the injunction application. The lower appellate court dismissed the C.M.A confirming the order passed by the learned Munsiff. In fact, the lower appellate court granted relief under the belief that there was an injunction order in operation during the pendency of the suit restraining the defendants from causing obstruction to the B schedule way. As pointed out by the learned counsel for the appellants, in fact, the order of injunction passed is based on the mistaken belief that there was injunction throughout during the pendency of the suit. The learned counsel for the appellants submitted that the trial court tried the suit considering the contentions of the parties and held that the plaintiffs are not entitled to any relief in the suit. it is submitted F.A.O.No.300 Of 2010 ::3:: that since there was no injunction order in operation during the pendency of the suit the plaintiffs are not entitled to get any relief by way of interim order in the appeal. 3. After hearing both sides, I am of the view that the matter requires reconsideration. As pointed out by the learned counsel for the appellants, the learned Judge was under the mistaken belief that there was an order of injunction in force during the pendency of the suit. In the result the appeal is allowed. The impugned order is set aside. I direct the learned Sub Judge, Ottappalam to consider and dispose of I.A.No.1389 of 2010 afresh after hearing both sides, within a period of three weeks from the date of receipt of a copy of this judgment. Parties are at liberty to raise all contentions available to them at the time of hearing. The interim order passed by this Court shall continue till the disposal of I.A.No.1389 of 2010. HARUN-UL-RASHID, Judge. bkn/-