IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 18TH MAY 2010 / 28TH VAISAKHA 1932 WP(C).No. 13488 of 2010(O) ---------------------------------------- AS.394/2009 of ADDL.DISTRICT COURT, KOTTAYAM .................... PETITIONER(S): ----------------------- 1. JESSY MON C.PHILIP, W/O MON C.PHILIP, KOTTACKEL HOUSE, KARAPPUZHA KARA, KOTTAYAM. 2. MON C.PHILIP, -DO- -DO-. BY ADV. SRI.MATHEW JOHN (K) RESPONDENT(S): -------------------------- M/S. NARMADA, A PARTNERSHIP FIRM WITH MAIN PLACE OF BUSINESS AT A.K.ROAD, KOTTAYAM REPRESENTED BY ITS MANAGING PARTNER K.RAMAKRISHANNAN, RESIDING AT ASHA BHAVAN, THIRUNAKKRA KARA, KOTTAYAM VILLAGE, KOTTAYAM TALUK AND DISTRICT. BY ADV. SRI.BECHU KURIAN THOMAS. SMT.P.N.SUMANGALA, (ADV.COMMNR.) THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/05/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 13488/2010-O APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE WRITTEN STATEMENT DATED 20/03/2001 BY THE RESPONDENT. EXT.P2: COPY OF THE COMMISSION REPORT DATED 17/12/2005. EXT.P3: COPY OF THE 2ND COMMISSION REPORT DATED 06/02/2009 ALONG WITH THE SURVEY SKETCH. EXT.P4: COPY OF THE JUDGMENT DATED 26/10/2009 IN O.S. NO.35 OF 2000, PRL SUB COURT, KOTTAYAM. EXT.P5: COPY OF THE MEMORANDUM OF APPEAL IN AS.NO.394 OF 2009 DATED 21/12/2009 BEFORE THE ADDL.DISTRICT COURT, KOTTAYAM EXT.P6: COPY OF THE PHOTOGRAPH. EXT.P7: COPY OF THE AFFIDAVIT AND PETITION BY THE PETITIONERS DATED 31/03/2010 FOR ADVANCING THE HEARING OF THE APPEAL. EXT.P8: COPY OF THE AFFIDAVIT AND PETITION DATED 31/03/2010 FOR INJUNCTION. EXT.P9: COPY OF THE AFFIDAVIT AND PETITION DATED 31/03/2010 FOR DEPUTING AN ADVOCATE COMMISSIONER. EXT.P10: COPY OF THE OBJECTION FILED BY THE RESPONDENT DATED 08/04/2010. EXT.P11: COPY OF THE ORDER DATED 08/04/2010 IN I.A. NO.438 OF 2010 IN AS.NO.394 OF 2009. EXT.P12: COPY OF THE PHOTOGRAPH. EXT.P12(a): COPY OF THE PHOTOGRAPH. EXT.P12(b): COPY OF THE PHOTOGRAPH. EXT.P13: COPY OF THE PHOTOGRAPH. EXT.P13(a): COPY OF THE PHOTOGRAPH. EXT.P13(b): COPY OF THE PHOTOGRAPH. EXT.P13(c): COPY OF THE PHOTOGRAPH. WP(C) NO. 13488/2010-o EXT.P13(d): COPY OF THE PHOTOGRAPH. EXT.P13(e): COPY OF THE PHOTOGRAPH. EXT.P13(f): COPY OF THE PHOTOGRAPH. EXT.P13(g): COPY OF THE PHOTOGRAPH. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.S. TO JUDGE rs. P.BHAVADASAN, J. ------------------------------------- WP(C) No.13488 of 2010 ------------------------------------- Dated 18th May 2010 Judgment In this Writ Petition, the petitioners seek the following reliefs : (a) Call for the records leading upto Ext.P11 and set aside Ext.P11. (b) Issue an order of temporary injunction restraining the respondent from making any construction in the decree schedule property and the pathway on the western side of the same without leaving statutorily prescribed distance of 1.20 metres from the western wall of the petitioners' building in the decree scheduled property. (c) Issue appropriate directions requiring the Additional District Court to immediately take up Exts.P8 and P9 applications and pass orders on the same in accordance with law. (d) Issue such other directions or orders as are just and necessary in the facts and circumstances of the case to meet the ends of justice.” 2. The petitioner instituted OS No.35 of 2000 before the Sub Court, Kottayam. The suit was one for declaration of title and possession of the plaint schedule WPC 13488/10 2 property, for the fixation of boundaries of plaint schedule property on its west and north and other ancillary reliefs. 3. The Trial Court, after consideration of the evidence adduced before it, dismissed the suit. The petitioners carried the matter in appeal as AS No.394 of 2009 before the Additional District Judge (Special), Kottayam. A copy of the said appeal memorandum is produced as Ext.P5. The appeal was admitted on 23.12.2009 and it was posted for return of notice to 02.02.2010. The respondent entered appearance on 15.03.2010 and recording the receipt of the lower court records, the Court adjourned the matter to 29.05.2010. 4. According to the petitioners, taking advantage of the fact that the Civil Courts were closing for the mid-summer vacation, the respondent started construction in the pathway leading from K.K.Road on the south to the respondent's property on the north. This, according to the petitioners, would prejudice their rights and interests in the appeal. In view of the said WPC 13488/10 3 development, the petitioners were constrained to move IA No.438 of 2010 before the Appellate Court, seeking to have the hearing of the appeal advanced from 29.05.2010 to a nearer date. A copy of the said IA is produced as Ext.P7. An injunction application was also filed, a copy of which is produced as Ext.P8. It was also pointed out by way of abundant caution that an application for appointment of an Advocate Commissioner was also moved. A copy of the said application is produced as Ext.P10. 5. Unfortunately for the petitioners, without adverting to the relevant facts and considering the urgency of the situation, the Appellate Court dismissed the Early Posting petition by a cryptic order. That prompted the petitioners to move this Court for immediate reliefs. 6. This Court, by its order dated 20.04.2010, granted a temporary injunction as prayed for, for one month. This Court also appointed a Commissioner to inspect the plaint schedule property. The Commissioner WPC 13488/10 4 has already filed a report before this Court. 7. Both sides agreed that since the appeal is posted to 29.05.2010 for final hearing, it is unnecessary to go into the merits of the case in this Writ Petition. This submission is well founded. 8. Since the appeal itself is posted for final hearing on 29.05.2010, it is unnecessary for this Court to go into the details of the case at this juncture. This Court was inclined to grant an interim order in favour of the petitioners. It must be noticed that the petitioners had sought for an interim order before the Court below also. It was on failure to have the hearing of the appeal advanced to a nearer date, that they moved this Court. It is only just and proper that the interim order granted by this Court is extended till the final haring of the appeal or till final orders are passed on the IA filed by the petitioners before the Appellate Court, whichever is earlier. It is so ordered. 9. It is further pointed out that the petitioners have filed an application before this Court, complaining WPC 13488/10 5 violation of the interim order of this Court. The said application shall be forwarded to the Court below for consideration along with other applications or appeal. 10. It is made clear that the Court below shall dispose of the appeal and the IA filed by the petitioners before the Appellate Court as the case may be, untrammeled by any of the observations made by this Court while granting the interim order. The Appellate Court may make every endeavour to dispose of the appeal itself within two months from 29.05.2010. The Writ Petition is disposed of as above. P.BHAVADASAN, JUDGE sta WPC 13488/10 6