IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 2ND AUGUST 2011 / 11TH SRAVANA 1933 OP(C).No. 2504 of 2011(O) ------------------------- CMA.39/2011 of ADDL. DISTRICT COURT-II, KOZHIKODE OS.385/2010 of PRINCIPAL MUNSIFF COURT,KOZHIKODE-II (IA 1147/2011) .................... PETITIONERS: ------------------------- MALLIKA DEVI AMMA,AGED 65 YEARS, D/O.AMMU @ MALU AMMA,AMABALAKKANDY HOUSE, CHELAVOOR AMSOM,MAYANAD DESOM,KOZHIKODE TALUK, PIN-673 571. BY ADVS. SRI.SRINATH GIRISH, SRI.E.NARAYANAN. RESPONDENT(S): --------------------------- 1. KSHETHRA SAMRAKSHANA SAMITHI BRANCH PERATATTIL AMBALAKKANDY SUBRAHMANYA KSHETHRAM, REPRESENTED BY ITS SECRETARY,T.P.HARI,AGED 30 YEARS, S/O.T.P.CHANDRAN,DWARAKA,POST KOTTAPARAMBA, KOZHIKODE-673 008. 2. KSHETHRA SAMARAKSHANA SAMITHI BRANCH, PERATATTIL AMBALAKKANDY SUBRAHMANYA KSHETHRAM, REPRESENTED BY ITS PRESIDENT,P.V.KRISHNAN NAMBEESAN, AGED 70 YEARS,S/O.NARAYANAN NAMBEESAN, VARENYAM,VENGERI,KOZHIKODE-673 010. 3. P.V.ARAVINDAKSHAN,AGED 66 YEARS, S/O.CHATHUKUTTY NAIR,PADINJARUVEETIL,CHELAVOOR AMSOM,MAYANAD DESOM,KOZHIKODE TALUK-673 571. 4. A.K.BOBY,AGED 33 YEARS,S/O.RAJAN NAIR, AMBALAKKANDY PARAMBA,CHELAVOOR AMSOM,MAYANAD DESOM,KOZHIKODE TALUK-673 571. 5. PRABHAKARAN NAIR,AGED 66 YEARS, S/O.RARAPPANAUNNY KURUP,PADINJARUVEETIL, CHELAVOOR AMSOM,MAYANAD DESOM,KOZHIKODE TALUK, PIN-673 571. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 02/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss OPC.NO.2504/2011 O APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE PLAINT DTD. 12/05/2010 IN O.S.385/2010 ON THE FILE OF THE MUNSIFF, KOZHIKODE - II. P2: COPY OF THE WRITTEN STATEMENT AND COUNTER CLAIM DTD. 23/9/2010 SUBMITTED BY DEFENDANT NO.1 IN O.S.385/2010 ON THE FILE OF THE PRINCIPAL MUNSIFF, KOZHIKODE - II. P3: COPY OF THE REPORT AND SKETCH DTD. 01/06/2010 SUBMITTED BY THE ADVOCATE COMMISSIONER IN IA.2009/2010 IN O.S.385/2010 ON THE FILE OF THE PRINCIPAL MUNSIFF, KOZHIKODE - II. P4: COPY OF THE COMMON ORDER PASSED IN I.A.2009/2010 AND I.A.2074/2010 IN O.S.385/2010 ON THE FILE OF THE PRINCIPAL MUNSIFF, KOZHIKODE-II. P5: COPY OF THE AFFIDAVIT AND PETITION DTD. 07/03/2011 IN IA.NO.1147/2011 IN O.S.385/2010 ON THE FILE OF THE PRINCIPAL MUNSIFF, KOZHIKODE II. P6: COPY OF THE COUNTER STATEMENT DTD. 17/03/2011 FILED BY THE RESPONDENT IN I.A.1147/2011 IN O.S.385/2010 ON THE FILE OF THE PRINCIPAL MUNSIFF, KOZHIKODE - II. P7: COPY OF THE REPORT AND PLAN DTD. 09/03/2011 SUBMITTED BY THE ADVOCATE COMMISSIONER IN O.S.385/2010 ON THE FILE OF THE PRINCIPAL MUNSIFF, KOZHIKODE - II. P8: COPY OF THE ADDITIONAL REPORT DTD. 10/03/2011 SUBMITTED BY THE ADVOCATE COMMISSIONER IN O.S.385/2010 ON THE FILE OF THE PRINCIPAL MUNSIFF, KOZHIKODE - II. P9: COPY OF THE ORDER DTD. 11/04/2011 IN I.A.1147/2011 IN O.S.385/2010 ON THE FILE OF THE PRINCIPAL MUNSIFF, KOZHIKODE - II. P10: COPY OF THE MEMORANDUM OF APPEAL DTD. 31/05/2011 IN CMA 39/2011 ON THE FILE OF THE DISTRICT COURT, KOZHIKODE II A. P11: COPY OF THE JUDGMENT DTD. 12/07/2011 IN CMA 39/2011 ON THE FILE OF THE DISTRICT COURT, KOZHIKODE II A. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.2504 of 2011 --------------------------------------- Dated this 02nd day of August, 2011 JUDGMENT This original petition arises from the judgment of learned Second Additional District Judge-II, Kozhikode in C.M.A.No.39 of 2011 modifying the order passed by the learned Principal Munsiff, Kozhikode on I.A.No.1147 of 2011 in O.S.No.385 of 2010. Respondents 1 and 2 filed the suit for a decree for prohibitory injunction. Petitioner filed written statement and counter claim making claim over the suit property as if it belonged to her and seeking decree for prohibitory injunction against trespass. Respondent filed I.A.No.2009 of 2010 while petitioner filed I.A.No.2074 of 2010, both for an order of prohibitory injunction. Trial court as per Ext.P4 directed parties to maintain status quo. Alleging that respondents violated that order by constructing a well, fence and compound wall in the suit property petitioner filed I.A.No.1147 of 2011 for an order of mandatory injunction to remove the impugned constructions. That application was allowed by the learned Munsiff by Ext.P9, order. Respondents challenged that order in appeal in C.M.A.No.39 of 2011. Learned Additional District Judge after O.P(C).No.2504 of 2011 -: 2 :- going through the records held that so far as construction of fence is concerned, there is violation of Ext.P9, order of status quo and hence respondents are liable to remove the fence on the north and south of the suit property. So far as the compound wall on the east is concerned, learned Additional District Judge felt doubt whether the said compound wall is constructed in the suit property. It is observed that it is not clear from the materials produced whether the eastern compound wall (sought to be removed) is inside the suit property or not. So far as the well is concerned, learned Additional District Judge opined that even at the time of first inspection by the Advocate Commissioner, construction of the well was going on and in the circumstance, it is not proper to direct closure of the well at this stage. It is accordingly that Ext.P9, order was modified. 2. Learned counsel for petitioner contends that the order of status quo was violated with impunity and if the order of Court is allowed to be violated that will result in non administration of justice. 3. I cannot disagree with the view expressed by the learned counsel but, whether the request for mandatory injunction is to be allowed or not depends on the facts of each case. So far as removal of fence on the north and south is concerned, appellate court has confirmed the order of learned O.P(C).No.2504 of 2011 -: 3 :- Munsiff. Regarding the compound wall and closure of well learned Additional District Judge, having regard to the materials on record has held that order of mandatory injunction to that extent cannot be allowed. That is based on sound reasoning and does not require interference under Art.227 of the Constitution. 4. It is pointed out by learned counsel that an application filed under Order XXXIX of Rule 2A of the Code of Civil Procedure is pending in the trial court and that the trial court may be directed to conduct enquiry into that matter. It is open to the petitioner to request the Court to enquire into that matter and pass appropriate order as provided under law. With the above direction this original petition is closed. (THOMAS P JOSEPH, JUDGE) Sbna/-